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Slj^ library Itttorsttg of Nnrtl) (Harolitta OloUfrtion af Nnrll| Olaroltntana C34-0 I?* 4- 2/44- y UNIVERSITY OF N.C. AT CHAPEL HILL 00033944769 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION BIEN N lAL REPORT OF THE ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA VOLUME 27 1942- 1944 Harry McMullan attorney general George B. Patton W. J. Adams, Jr. Hughes J, Rhodes assistant attorneys general LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 Term of Office Avery, Waightsill 1777-1779 Iredell, James .-.. 1779-1782 Moore, Alfred 1782-1790 Haywood, J. John...... -. ...1791-1794 Baker. Blake 1794-1803 Seawell, Henry 1803-1808 Fitts, Oliver 1808-1810 Miller. William , .' ...1810-1810 Burton. Hutchins G....: 1810-1816 Drew, William :: 1816-1825 Taylor, James F :.. 1825-1828 Jones, Robert H ...1828-1828 Saunders, Romulus M ...1828-1834 Daniel, John R. J 1834-1840 McQueen, Hugh 1840-1842 Whitaker, Spier 1842-1846 Stanly, Edward 1846-1848 Moore, Bartholomew F 1848-1851 Eaton, William .1851-1852 Ransom. Matt W. .....1852-1855 Batchelor, Joseph B 1855-1856 Bailey, William H 1856-1856 Jenkins. William A 1856-1862 Rogers. Sion H .1862-1868 Coleman, William M 1868-1869 Olds, Lewis P 1869-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L. , 1872-1876 Kenan. Thomas S 1876-1884 Davidson. Theodore F 1884-1892 Osborne, Frank I 1892-1896 Walser, Zeb V 1896-1900 Douglas, Robert D. ...1900-1901 Gilmer, Robert D 1901-1908 Bickett. T. W 1909-1916 Manning. James S 1917-1925 Brummitt, Dennis G ...1925-1935 Seawell, A. A. F ...1935-1938 McMuIIan, Harry 1938- LETTER OF TRANSMITTAL O 00 tr cr 1 November. 1944 To His Excellency J. Melville Broughton, Governor Raleigh, North Carolina Dear Sir: In compliance with statutes relating thereto, I herewith transmit the report of the Department of Justice for the biennium 1942-1944. Respectfully yours, Harry McMullan, Attorney General. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/biennialrep1942attrny1944 EXHIBIT I Civil Actions Disposed of or Pending in the Courts of North Carolina and in Other Courts Pending in Superior Courts of North Carolina C. A. Blackwelder Will case (Stonewall Jackson Training ' School). State ex rel. Beaufort County v. H. P. Webster. Burroughs Adding Machine Company v. Gill, Commissioner of Revenue. Church V. American Equitable Assurance Company, et al. County of Craven v. Each and All Property Ow^ners, etc. R. L. Lewis and Huger King v. Charles M. Johnson, State Treasurer. Morrison v. Williams, et al. Plummer, et al. v. H. E. King, Trustee. State ex rel. Department of Conservation and Develpoment v. Odie Johnson, et al. In Re : Liquidation of United Bank and Trust Company. General Motors Corporation v. Doughton (two cases). State ex rel. Maxwell, Commissioner of Revenue v. American Tobacco Company. State ex rel. N. C. Corporation Commission v. Southern Railway Company. Disposed of in Superior Courts of North Carolina Commissioners of Chowan County v. State Board of Assessment, et al. M. D. Harris, et al. v. Maxwell, Commissioner of Revenue. State ex rel. Johnson, State Treasurer v. Wachovia Bank and Trust Company. B. S. Colburn v. First National Bank and Trust Company, et al. City of Raleigh v. State Hospital at Raleigh. Hunsucker, et al. v. Winborne, Commissioner, et al. J. J. Johnson v. N. C. Department of Highway Patrol. State ex rel. Utilities Commission v. Atlantic Greyhound Corp., et al. (2 cases). State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company. Arthur Pue, et al. v. Hood, Commissioner of Banks. Southern Railway Company v. Rockingham County. N. C. Mortgage Corporation v. Maxwell, Commissioner of Revenue. 6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. W. F, Logan v. Cline, Sheriff, Commissioner of Revenue, et al. State V. Thomas M. Stanton. Geo. Kostakes, etc. v. Gill, Commissioner of Revenue. Valentine, Executor v. Gill, Commissioner of Revenue. Asheville Livestock Company v. Gill, Commissioner of Revenue. Safrit v. Hocutt, Director of Highway Safety Division. Brown v. Gill, Commissioner of Revenue. Cooper V. Ward, Commissioner of Motor Vehicles. Southern Dairies, Inc. v. Maxwell, Commissioner of Revetiue. Caswell Training School v. T. A. Loving Company. James W. Davis, et al. v. Davis Hospital, Inc., et al. Hyde County v. A. D. MacLean Estate, et al. Eric Norden v. State Board of Education. Disposed of in Municipal Recorder's Court State v. Nick D. Kaperonis. Pending Before Industrial Commission L. O. Hill V. Forsyth County Board of Education. Disposed of Before Industrial Commission L. L. Guy V. N. C. Board of Alcoholic Control. Wilhemina H. Smith v. Thomasville Board of Education, ec al. Lois B. Callihan, et al. v. Board of Education, et al. J. J. Johnson v. N. C. Department of Highway Patrol. Jones, Administrator v. University of North Carolina. Disposed of in North Carolina Supreme Court Arthur Pue, et al. v. Hood, Commissioner of Banks, 222 N. C, 310. Mattie Gilmore, et al. v. Hoke County Board of Education, et al.. 222 N. C. 358. Lola Beacham CaUihan v. Board of Education, et al., 222 N. C. 381. Dan W. McLean v. Durham County Board of Elections, 222 N. C. 6. Valentine, Executor v. Gill, Commissioner of Revenue, 223 N. C. 396. Thompson v. State of North Carolina, et al., 223 N. C. 340. Hunsucker, et al. v. Stanley Winborne, et al., 223 N. C. 650. Warren, et al. v. State Board of Assessment, et al., 223 N. C. 604. James Cooper v. T. Boddie Ward, Commissioner, 224 N. C. 99. State ex rel. Utilities Commission v. Atlantic Greyhound Corp. (2), 224 N. C. 293. State ex rel. Utilities Commission v. Atlantic Coast Line R, R. Co., 224 N. C. 283. In Re: Yelton, 223 N. C. 845. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 Pending in United States Supreme Court Williams and Hendrix v. State of North Carolina (new case). Disposed of in United States Supreme Court Eldon Steele v. State of North Carolina. Williams and Hendrix v. State of North Carolina. Charlie Herndon v. State of North Carolina. Carl Lippard v. State of North Carolina. Mayo V. United States of America. Pending in United States District Court United States of America v. 166.77 acres in Buncombe County. United States of America v. 1,028.238 acres in Onslow County ( Kesler ) . United States of America v. 10,866.93 acres in Onslow County (Wynne). United States of America v. Southern States Power Company, et al. United States of America ex rel. Tennessee Valley Authority v. Geo. G. Whitcomb, et al. Disposed of in United States District Court United States of America v. Nathan Mayo, et al. United States of America v. State of North Carolina ( Test Farm at Swannanoa). Pending in District Court of Appeals Jeamiette A. Noel v. Edson B. Olds, Jr., et al. (Ackland Will case ) . Disposed of Before Federal Power Commission In re : Declaration of Intention of Nantahala Power and Light Company, etc. (Fontana Project). EXHIBIT II List of Criminal Cases Argued by the Attorney General and His Assistants Before the North Carolina Supreme Court: Fall Term, 1942; Spring Term, 1943; Fall Term, 1943; Spring Term, 1944. FALL TERM, 1942 State V. Allen, from Johnston; murder first degree; defendant appealed; no error; 222 N. C. 145. State V. Anderson, from Wayne; manslaughter; defendant ap-pealed; new trial; 222 N. C. 148. State V. Baker, from Cumberland; manslaughter; defendant ap-pealed; new trial; 222 N. C. 428. State V. Barefield, from Craven; larceny; defendant appealed; appeal dismissed. State V. Baynes and Dunnagan, from Davidson; violating munici-pay ordinance; defendants appealed; Baynes, new trial; Dunna-gan, reversed; 222 N. C. 425. State V. Bonner, et al., from Columbus; murder first degree; defendants appealed; new trial; 222 N. C. 344. State V. Broom, from Mecklenburg (2 cases) 1—murder first degree; 2—murder second degree; defendant appealed; new trial; 222 N. C. 324. State V. Champion, from Vance; murder second degree; defend-ant appealed; new trial; 222 N. C. 160. State V. Christopher, from Yancey; violating municipal ordi-nance; defendant appealed; reversed (per cur.) 222 N. C. 98. State V. Colson, from Currituck; violating liquor laws; defendant appealed; no error; 222 N. C. 28. State V. Cromer, from Stokes; felonious burning; defendant ap-pealed; reversed; 222 N. C. 35. State V. David, from Lenoir; murder second degree; defendant appealed; new trial; 222 N. C. 242. State V. Davis, from Wilkes; assault with deadly weapon; de-fendant appealed; new trial; 222 N. C. 178. State V. Debnam, from Franklin; manslaughter; defendant ap-pealed; new trial; 222 N. C. 266. State V. DeGraffenreid, from Lee; manslaughter; defendant ap-pealed; new trial; 222 N. C. 113. State V. Dove, from Harnett; murder second degree; defendant appealed; appeal dismissed (per cur); 222 N. C. 162. State V. Duncan, from Buncombe; bastardy; defendant appealed; affirmed; 222 N. C. 11. State V. Forte, from Forsyth; abortion; defendant appealed; reversed; 222 N. C. 537. [Vol. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9 State V. Goss, from Wilkes; manslaughter; defendant appealed; no error; 222 N. C. 751. State V. Hairston, from Forsyth; rape; defendant appealed; no error; 222 N. C. 455. State V. Harris, from Bertie; rape; defendant appealed; no error: 222 N. C. 157. State V. High, et al., from Wilson; operating junk yard in resi-dential section; defendant appealed; reversed; 222 N. C. 434 State V. Howard, from Wake; embezzlement; defendant ap-pealed; no error; 222 N. C. 291. State V. Jones, from Beaufort; assault with intent to commit rape; defendant appealed; affirmed; 222 N. C. 37. State V. H. King, from Buncombe; violating liquor laws; defend-ant appealed; appeal dismissed; 222 N. C. 137. State V. G. King, from Cabarrus; larceny; defendant appealed; no error; 222 N. C. 239. State V. McLeod, from Harnett; violating liquor laws; defendant appealed; error and remanded; 222 N. C. 142. State v. Meares, from Robeson; murder first degree; defendant appealed; no error; 222 N. C. 436. State v. Moore, from Columbus; nonsupport; defendant ap-pealed; no error; 222 N. C. 356. State v. Neal, from Forsyth; murder first degree; defendant ap-pealed; no error; 222 N. C. 546. State v. Norton, from Scotland; assault with deadly weapon; de-fendant appealed; new trial; 222 N. C. 418. State V. Patterson, from Craven; violating liquor laws; defend-ant appealed; appeal dismissed; 222 N. C. 179. State V. Reddick, from Forsyth; receiving stolen goods; defend-ant appealed; no error; 222 N. C. 520. State V. Reynolds, from Stokes; breaking and entering; defend-ant appealed; no error; 222 N. C. 40. State V. Shine, from Duplin; violating liquor laws; defendant ap-pealed; no error; 222 N. C. 237. State V. Tennant, from Wake; embezzlement; defendant ap-pealed; no error; 222 N. C. 277. State V. Todd, from Columbus; murder first degree; defendant appealed; reversed; 222 N. C. 346. State V. Tola, from Cumberland; violating liquor laws; defendant appealed; no error; 222 N. C. 406. State V. Vincent, from Durham; rape; defendant appealed; no error; 222 N. C. 543. State V. Ward, from Wake; embezzlement; defendant appealed; no error; 222 N. C. 316. State V. Wellman, from Iredell; rape; defendant appealed; no error; 222 N. C. 215. Docketed and Dismissed on Motion State V. Phillips, from Durham. State V. Whetstine, from Rutherford. 10 ' BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. SPRING TERM, 1943 State V. Auston, from Guilford; murder second degree; defend-ant appealed; no error; 223 N. C. 203. State V. Baxley, from Robeson; statutory rape; defendant ap-pealed; no error; 223 N. C. 210. State V. Boyd, et al., from Franklin; possessing burglar tools; de-fendants appealed; reversed; 223 N. C. 79. State V. Burrage, from Stanly; murder first degree; defendant appealed; new trial; 223 N. C. 129. State V. Clarke, et als., from Catawba; appeal from judgment absolute against bond; defendants appealed; appeal dismissed; 222 N. C. 744. State V. E. Davis, from Franklin; assault with deadly weapon with intent to kill; defendant appealed; new trial; 223 N. C. 57. State V. H. Davis, from Wake; nuisance, gambling, etc.; defend-ant appealed; affirmed; 223 N. C. 54. State V. Farrell, from Durham; rape; defendant appealed: new trial; 223 N. C. 321. State V. Friddle, et al., from Guilford; breaking, entering and larceny; defendants appealed; new trial; 223 N. C. 258. State V. Grass, from Cabarrus; murder first and second degrees; defendant appealed; no error; 223 N. C. 31. State V. Gray, from Mecklenburg; violating liquor laws; defend-ant appealed; no error; 223 N. C. 120. State V. Herndon, from Robeson; operating building for purpose of prostitution, etc.; defendant appealed; no error; 223 N. C. 208. State V. Hunt, et al., from Robeson; rape; defendants appealed; no error; 223 N. C. 173. State V. Lippard, et al., from Mecklenburg; conspiracy to violate liquor laws; defendants appealed; no error; 223 N. C. 167. State V. McKinnon, et al., from Moore; murder second degree; defendants appealed; no error; 223 N. C. 160. State V. Miller, et al., from Robeson; manslaughter; defendants appealed; new trial; 223 N. C. 184. State V-. Nesbit, from Mecklenburg; Assault on female; no juris-diction; appeal dismissed. State V. Pelley, et al., from Buncombe; appeal from judgment absolute against bond; Dorsett and Fisher appealed; affirmed; 222 N. C. 684. State V. Rice, from Madison; murder second degree; defendant appealed; new trial; 222 N. C. 634. State V. Smith, from Columbus; seduction; defendant appealed; no error; 223 N. C. 199. State V. Trippe, from Pasquotank; rape; defendant appealed; no error; 222 N. C. 600. State V. Utley, from Montgomery; murder first degree; defendant appealed; no error; 223 N. C. 39. 27 J BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 State V. Watson, from Bertie; murder first degree; defendant appealed; no error; 222 N. C. 672. State V. Wilborn, (See "State v. Boyd, et al."). Docketed and Dismissed on Motion State V. Bryant, from McDowell. State V, Isley, from Rockingham. State V. Lee, from Camden. State V. Moody, from Northampton. State V. Wilfong, from Catawba. FALL TERM, 1943 State V. Bentley, from Caldwell; assault with deadly weapon; defendant appealed; no error; 223 N. C. 563. State V. Biggs, et als., from Guilford; murder first degree; defend-ants appealed; new trial; 224 N. C. 23. State V. Cameron, et al., from Lee; larceny; defendants appealed; reversed; 223 N. C. 449. State V. Cameron, from Lee; larceny; defendant appealed; no error; 223 N. C. 464. State V. Campbell, from Durham; doing business without license; defendant appealed; reversed; 223 N. C. 828. State V. Case, from Guilford; manslaughter; defendant appealed; no error (per cur.) ; 223 N. C. State V. Cummings, from Robeson; assault on female; defendant appealed; no error (per cur.); 223 N. C. State V. Davis, from Pasquotank; murder second degree; defend-ant appealed; no error; 223 N. C. 381. State V. DeGraffenreid, from Lee; murder second degree; defend-ant appealed; new trial; 223 N. C. 461. State V. Dillard, from Wayne; abortion; defendant appealed; no error; 223 N. C. 446. State V. EUerbee, from Richmond; manslaughter; defendant ap-pealed; new trial; 223 N. C. 770. State V, Epps, et al., from Robeson; larceny; defendants appealed; no error; 223 N. C. 740. State V. Farrell, from Durham; rape; defendant appealed; no error: 223 N. C. 804. State V. Grainger, from Columbus; murder first degree; defend-ant appealed; no error; 223 N. C. 716. State V. Grass, from Cabarrus; murder first degree; defendant appealed; judgment affirmed; appeal dismissed (per cur.); 223 N. C. State V. Gregory, from Johnston; assault with deadly weapon with intent to kill; defendant appealed; error and remanded; 223 N. C. 415. State V. Harris, from Hoke; murder first degree; defendant ap-pealed; no error; 223 N. C. 697. 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. State V. Herndon, from Robeson; operating house of prostitution; defendant appealed; appeal dismissed. State V. C. Hill, et al., from Guilford; perjury; defendant Hill appealed; new trial; 223 N. C. 711. State V. N. Hill, from Guilford; violating liquor laws; defendant appealed; no error; 223 N. C. 753. State V. Holbrook, from Wilkes; larceny; defendant appealed; new trial; 223 N. C. 622. State V. Jackson, from Onslow; sale of beer and whiskey (two cases); defendant appealed; affirmed (per cur.,); 223 N. C. State V. Lowery, from Rowan; involuntary manslaughter; de-fendant appealed; reversed; 223 N. C. 598. State V. McKeon, from Edgecombe; breaking, entering and larceny; defendant appealed; affirmed; 223 N. C. 404. State V. O'Connor, et al., from Harnett; forfeiture of bond; de-fendant surety appealed; affirmed; 223 N. C. 469. State V. Oxendine, et al., from Scotland; receiving stolen goods, etc.; defendants appealed; reversed; 223 N. C. 659. State v. Prince, from Swain; murder second degree; defendant appealed; new trial; 223 N. C. 392. State V. Redfern, from Wake; murder first degree; defendant ap-pealed; no error; 223 N. C. 561. State V. Rising, from New Hanover; breaking, entering and larceny; defendant appealed; no error; 223 N. C. 747. State V. Smith, from Warren; murder first degree; deffendant appealed; no error; 223 N. C. 457. State V. Suddreth, from Caldwell; violating liquor laws; defend-ant appealed; reversed; 223 N. C. 610. State V. Tyson, from Pitt; assault on female; defendant appealed; error and remanded; 223 N. C. 492. State V. Vicks, from Chowan; rape; defendant appealed; no error; 223 N. C. 384. Docketed and Dismissed on Motion State V. Poole, from Pasquotank. SPRING TERM, 1944 State V. Ballard, from Harnett; assault with intent to commit rape; defendant appealed; no error (per cur.); 224 N. C. State V. Dill, from Madison; nonsupport; defendant appealed; reversed; 224 N. C. 57. State V. Dry, from Cabarrus; assault with deadly weapon; defendant appealed; appeal dismissed; 224 N. C. 224. State V. Gay, from Harnett; assault with intent to commit rape; defendant appealed; new trial; 224 N. C. 141. State V. Gordon, from Wake; violating liquor laws; defendant and petitioner appealed; defendant, no error; petitioner, ap-peal dismissed; 224 N. C. 304. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 State V. Graham, C, from Bladen; violating liquor laws; defend-ant appealed; error and remanded; 224 N. C. 347. State V. Graham, M., from Bladen; violating liquor laws; defend-ant appealed; no error; 224 N. C. 351. State V. Hail, from Cumberland; violating liquor laws; state ap-pealed; reversed; 224 N. C. 314. State V. Ham, et al., from Johnston; robbery; defendant appealed; Ham and T. Hardy, no error; R. Hardy, reversed; 224 N. C. 128. State V. King, from Guilford; operating lottery; defendant ap-pealed; no error; 224 N. C. 329. State V. Miller, et al., from Catawba; fornication and adultery; defendant Miller appealed; no error; 224 N. C. 228. State V. Nunley, from Rockingham; attempted larceny; defend-ant appealed; reversed; 224 N. C. 96. State V. Oldham, from Forsyth; vagrancy; defendant appealed; reversed; 224 N. C. 415. State V. O'Connor, et al., from Harnett; forfeiture of bond; surety defendant appealed; affirmed (per cur.); 224 N. C. State V. Register, et al., from Harnett; assault with deadly weapon with intent to kill; defendants appealed; no error (per cur.); 224 N. C. State V. Rivers, from Alamance; manslaughter; defendant ap-pealed; no error; 224 N. C. 419. State V. Robinson, et al., from Forsyth; operating lottery; de-fendants appealed; error and remanded; 224 N. C. 412. State V. Sawyer, et al., from Camden; highway robbery; defend-ants appealed; no error; 224 N. C. 61. State V. Summerlin, from Caldwell; nonsupport; defendant ap-pealed; reversed; 224 N. C. 178. State V. Todd, from Cumberland; murder second degree; defend-ant appealed; no error; 224 N. C. 358. State V. Truelove, et al., from Harnett, abduction; defendants ap-pealed; no error; 224 N. C. 147. State v. Walsh, et al., from Caldwell; assault with intent to com-mit rape; defendants appealed; new trial; 224 N. C. 218. State V. Williams, et al., from Caldwell; bigamous cohabitation; defendants appealed; no error; 224 N. C. 183. Docketed and Dismissed on Motion State V. Couch, from Yadkin. SUMMARY Affirmed on defendant's appeal 66 Reversed on State's appeal ..._ . 1 New trial or reversed on defendant's appeal 41 Error and remanded 5 Appeal dismissed _ _ 17 130 14 biennial report of the attorney general [vol. 27] Fees Transmitted by Attorney General to State Treasurer Since February Term, 1942, Through February Term, 1944 State V. Smith $ 10.00 State V. Batson __ : 10.00 State V, Reynolds 10.00 State V. King 10.00 State V. Dove 10.00 State V. Howard 10.00 State V. King 10.00 State V. Ward 10.00 State V. Shine 10.00 State V. Moore 10.00 State V. Tennant , 10.00 State V. Reddick 10.00 State V. Duncan 10.00 State V. Tola ,....: 10.00 State V. Trippe : 10.00 State V. Pelley :. . 10.00 State V. Clarke 10.00 State V. Turner 10.00 State V. Gray 10.00 State V. Lippard 10.00 State V. Herndon 10.00 State V. Smith 10.00 State V. Auston ...... 10.00 State V. Davis 10.00 State V. Davis : 10.00 State V. Southern Railway 14.30 State V. McKeon 10.00 State V. Dillard 10.00 State V. Cameron 10.00 State v. Jackson .: 10.00 State V. Jackson 10.00 State V. Bentley 10.00 State V. Hill 10.00 State v. Grainger J. 10.00 State V. Case ..: 10.00 State V. Epps : 10.00 State V. Harris 10.00 State V. Cummings -.-. 10.00 State V. Ham, et al 10.00 State V. Register, et al 10.00 State V. Williams, et al 10.00 State V. Truelove 10.00 State V. Gordon 10.00 State V. Ballard 10.00 State V. King 10.00 State v. Todd 10.00 State v. Miller 10.00 State V. Graham 10.00 State V. Hall '. 10.00 $494.30 SUMMARY OF ACTIVITIES Staff Personnel On July 13, 1942, Mr. T. W. Bruton, Assistant Attorney General, was granted a leave of absence on account of having accepted a com-mission as Captain in the United States Army. Since that time Mr. Bruton has been promoted to the rank of Major and is now on active duty. Mr. H. J. Rhodes, Attorney at Law of Burlington, was appointed Assistant Attorney General upon granting the leave of absence to Mr. Bruton and Mr. Rhodes has been serving in that capacity until this time. Other important changes in personnel have occurred during the biennium. Mr. Harry W. McGalliard, who was Director of the Division of Legislative Drafting and Codification of Statutes, was called into service in August 1943, and was granted a leave of absence for the duration of the war. Mr. J. Bourke Bilisoly, who had been serving as a member of the staff of this Division, was named as Acting Director and has served in that capacity until the present time. Mr. Moses B. Gillam, Jr., was called into service in December 1943, and was granted a leave of absence. Mr. Joel Denton was appointed as a member of the staff to succeed Mr. Gillam. He served with us until he resigned, effective July 1, 1944, to accept a position in private employment. Mr. J. E. Tucker served as a member of the staff throughout the biennium. For the last half of the second year of the biennium, the personnel of the staff of the Division of Legislative Drafting and Codification of Statutes was, as contemplated, reduced to a director and stenographer. Mr. George B. Patton, Assistant Attorney General, has served throughout the biennium and Mr. W. J. Adams, Jr., Assistant Attorney General, has likewise served during this period. Mr. Adams is assigned to the Revenue Department under the terms of the statute and has had as his assistant, Mrs. Cornelia McKimmon Trott. The secretarial personnel during the biennium has been as follows: Mrs. Margaret York Wilson, Mrs. Lorraine H. Allers, Miss Lillian Turner, Miss EfRe McLean English and Miss Marjorie Mann. Division of Legislative Drafting and Codification of Statutes As was authorized by the 1941 General Assembly, a Legislative Edition of the General Statutes of North Carolina was prepared and submitted to the General Assembly of 1943. The preface of the Legisla-tive Edition gave in full the legislative history of the General Statutes and the work done in its preparation by this office and the commissions, both legislative and voluntary, which had been set up to cooperate with the Attorney General's office in the preparation and submission of this extensive work. The Legislative Commission appointed by the General Assembly of 1941 filed its recommendations, which were made a part of the Legislative Edition, and recommended the enactment of the General Statutes in the form presented by this office. Chapter 16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. 33, entitled "An Act Revising and Consolidating the Public Statutes of the State of North Carolina," was unanimously enacted by the General Assembly, providing that this revision of our statutory law should be in force from and after the 31st day of December 1943, and providing that all public and general statutes not contained in the General Statutes of 1943 be repealed. Certain exceptions and limi-tations are set out in Chapter 164, entitled "Concerning the General Statutes of 1943." This enactment made the General Statutes the official statement of the statutory law of the State. The publication of the General Statutes by The Michie Company was delayed on account of war conditions affecting the printing in-dustry but all four volumes have now been distributed and are in the hands of the purchasers. Chapter 192 of the Session Laws of 1943 authorized the purchase by the Governor and Council of State of not to exceed three hundred and fifty sets of the General Statutes, to be distributed to the judges of the Superior Court, the solicitors, the clerks of the Superior Court, and justices of the Supreme Court, the Supreme Court Library, and to various State officials, departments and agencies for any proper State use. Acting on this authority, the Governor and Council of State authorized the purchase of 293 sets at $22.50 per set. This dis-tribution was in addition to one hundred and seventy sets of the four-volume edition which were donated by the publisher, as a part of its contract for the publication, and distributed to members of the General Assembly of 1943. Along with the submission of the Legislative Edition of the General Statutes to the General Assembly, there were submitted a great many recommendations of the Division correcting obvious errors in existing statutes, repealing obsolete statutes and clarifying obscure statutes. Joint committees in the House and Senate set up by the General As-sembly of 1943 considered many of these recommendations and favorably reported the bill carrying many of the recommendations into effect. This bill was enacted as Chapter 543 of the Session Laws of 1943. Due to the fact that there were many recommendations which tht legislative coinmittees were unable to consider on account of lack of time, the General Assembly, by Joint Resolution No. 23, set up a commission composed of twelve members, five from the Senate and seven from the House, to continue the study of the recommendations for statutory revision and correction and directed that the report should be filed at the next General Assembly. At the time this is written, the commission is considering various recommendations made by the division and other changes in statutory law which will be pre-sented to the General Assembly in the report of the commission. Continuous Statutory Research and Revision Chapter 382 of the Session Laws of 1943 amended the Act creating the Department of Justice, by establishing a system of continuous statutory research and revision in the Division of Legislative Drafting .and Codification of Statutes. This Act provides : 27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 17 "In order that the laws of North Carolina, as set out in the General Statutes of North Carolina, may be made and kept as simple, as clear, as concise and as complete as possible, and in order that the amount of construction and interpretation of the statutes required of the courts may be reduced to a minimum, it shall also be the duty of the division of legislative drafting and codification of statutes to establish and main-tain a system of continuous statute research and correction. To that end the division shall: "1. Make a systematic study of the general statutes of the State, as set out in the General Statutes and as hereafter enacted by the General Assembly, for the purpose of ascertaining what ambiguities, conflicts, duplications and other imperfections of form and expression exist therein and how these defects may be corrected. "2. Consider such suggestions as may be submitted to the division with respect to the existence of such defects and the proper correction thereof. "3. Prepare for submission to the General Assembly from time to time bills to correct such defects in the statutes as its research discloses." The author of this bill is Mr. Robert Moseley, member of the Greensboro, North Carolina Bar, who is a member of the House. In an excellent article appearing in the June 1944 issue of the North Carolina Law Review, Mr. Moseley gives a very complete statement of the object and purposes of this legislation and the things it is hoped to accomplish thereby. Anyone interested in this subject will gain a great deal of information on the reading of this article. Due to the fact that the Division of Legislative Drafting and Codifica-tion of Statutes was unable to complete its work on the North Carolina Statutes until the latter part of the summer of 1944, very little work has been done as contemplated by this statute. The division has been cooperating with the commission appointed by the General Assembly of 1943, with a view of carrying forward the work necessary to correct the errors and omissions in the existing statutes as contemplated by the resolution appointing this commission. The division consists of a director and secretary. Its staff was reduced on January 1, 1944, which has necessarily imposed limitations on its accomplishments under this important statute. The work on the General Statutes having been completed and when the work of the commission studying the corrections and clarification of the statutes above referred to has been completed, it is planned to concentrate upon the work required by Chapter 382. It is obvious that to carry forward the important work contemplated by this statute, the personnel of this division should be increased. Recommendations with respect to this of a more specific character will be made during the 1945 session. Supplements to General Statutes The contract made with the publishers of the General Statutes contemplates that each six months there shall be issued a pocket supplement of each volume containing all statutory enactments there-after made and annotations up to date. The first issue of this pocket 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. supplement has been promised by the publishers for some time during the month of September 1944. Following a meeting of the General Assembly and as soon thereafter as possible, another supplement will be issued codifying and annotating the laws enacted at that session. With these pocket supplements, the General Statutes will be kept up to date as to statutory changes and court decisions set out in the annotations. Legislative Drafting It \vas a source of great satisfaction to the entire staff of the At-torney General's office, including the members of the Division of Legislative Drafting and Codification of Statutes, to be called upon to such a great extent by the members of the General Assembly of 1943 for assistance in the preparation of bills. With these calls, and with calls from State and local officials, the entire staff of the At-torney General's office was needed in the preparation of more than one thousand acts w^hich were drafted in this office. This is a service which the office is very glad to render, with the hope that it may result in benefit to members of the General Assembly in bill-drafting and in clarity and unification of our statutes with existing laws. Apprecia-tion is expressed for Joint Resolution No. 34, adopted by the General Assembly of 1943, with respect to this work. Division of Criminal and Civil Statistics During the biennium the work in this division has been in the charge of Mr. Clifton Beckwith. A report of the activities of this division has been prepared by Mr. Beckwith and is made a part of this statement. There is included as a part of the report a compilation of statistics covering the activities of our criminal courts, other than courts of justices of the peace, and a summarization of civil cases tried in our Superior Courts. A recommendation was made in the last Biennial Report that a bill be enacted authorizing the inclusion in each bill of costs in each civil and criminal case of a fee of ten cents to be paid to the reporting officer of the superior and inferior courts making the reports, which by law are required to be made to this department. The making of these reports requires considerable amount of time and attention of the clerks and the payment of this fee would be a strong inducement to secure these reports promptly and completelj^ State Bureau of Investigation There is included in this biennial report a report made by Mr. Thomas Creekmore, Director of the Bureau of Investigation, covering fully the activities of his division during the biennium. The character of the work being done by the State Bureau of Investigation is being more fully understood and appreciated by the sheriffs and police officers, courts and the public concerned in criminal investigations. This bureau has made available for every section of the State the services of well-trained criminal investigators of crimes requiring scientific study. The bureau has been fortunate in maintaining a high 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 class of personnel during the biennium and, with the limited number of investigators, has done an outstanding work in many important criminal cases. Recommendation: It is anticipated everywhere that following the ending of the war and the adjustments which will have to be made thereafter, we may reasonably expect a substantial increase in crime throughout the State. This increase, if it occurs, will make further demands upon this bureau and require the employment of an ad-ditional number of special agents. I recommend that an appropriation be made available in the event such condition arises, so that this need may be taken care of. Revenue Department and Motor Vehicle Department Toe levy and collection of taxes imposed by the Revenue Act necessarily requires a large amount of legal assistance. Under the statute. Assistant Attorney General W. J. Adams, Jr., has during the bienrsium been assigned to the Revenue Department and as his assist-ant he has had the help of Mrs. Cornelia McK. Trott. With our constantly expanding tax system and tax collections, legal problems arisiiig in this department have been greatly multiplied. The legal work required of the office of the Commissioner of Motor Vehicles has likewise been largely imposed upon Mr. Adams and his assistant. The heavy burden placed upon this office in performing its services constitutes part of the basis of my recommendation that the next General Assembly should authorize the appointment of one additional Assistant Attorney General. Under the law as it now is, the number of Assistant Attorneys General w^hich may be appointed is limited to three. In the event the General Assembly should authorize the increase of the number of Assistant Attorneys General to four, the staff of this office would still have all the work it could do. By comparison with the legal staffs in other states, it would seem that the staff in North Carolina, after this increase is made, will still be much less than any other state of comparable size. In Indiana, for instance, which is not as large a state as North Carolina, there are sixteen Assistant Attorneys General. Fortunately for us, the amount of tax litigation in this State has been small. If we had as much tax litigation as is found in other states, the staff provided would be totally inadequate to handle it. Office Conferences and Consultations With State Offices and Departmental Officials As required by the State Constitution, Article III, Section 14, and the laws enacted in pursuance thereto, this office has continued to serve as the legal adviser for the executive department. Throughout the bienium we have had frequent conferences with each of the State offices and departmental officials and, in many cases, have rendered oral advisory opinions. We have participated in many conferences held by various departments in the settlement of problems presented. 20 biennial report of the attorney general [vol. Atlantic and North Carolina Railroad The General Assembly of 1943 passed an Act, Chapter 412, author-izing a loan by the State to the Atlantic and North Carolina Railroad Company of $200,000, to be used with $400,000 provided by the United States Navy in a rehabilitation program of the railroad. The enactment of this legislation has resulted in the execution of a contract between the Bureau of Yards and Docks of the United States Navy and the Atlantic and North Carolina Railroad Company and the Atlantic and East Carolina Railway Company, providing for the ex-penditure of the $600,000, together with substantial expenditure by the Atlantic and East Carolina Railway Company, chargeable to main-tenance for the complete overhauling and rehabilitation of the tracks and structures of this railroad. As a result, the railroad will replace the old worn out 50 lb. rail with 80 lb. or 90 lb. rails from Goldsboro to Morehead City. Extensive drain-age and ballasting projects have been carried on, and many of the bridges and structures rebuilt. The railroad, at the completion of the work, will be in excellent condition to handle the heavy traffic which it is now required to transport. The loan made by the State will be repaid in a period of five years by additional revenues received by the Atlantic and North Carolina Railroad Company from increased rentals paid by the operating com-pany. The operating company has agreed to pay an additional rent until these advances have been repaid, representing 5 per cent gross revenues in excess of $475,000. The advances made by the Navy Department are to be paid by the operating railway by percentage reduction on navy freight and cancellation of switching charges in the Cherry Point Base. At the end of the operations, the Atlantic and North Carolina Rail-road Company will, without cost to itself, have the completely rebuilt roadway and track. The rehabilitation program during the biennium has required con-tinuous legal assistance from this Office in the negotiation and prepara-tion of the numerous contracts and amended lease involved therein. With the increased rentals now being paid by the operating railroad, the Atlantic and North Carolina Railroad Company should, within a few years, pay off the indebtedness now due the State. Since the $200,000 loan, above referred to, has been made, the Atlantic and North Carolina Railroad Company has paid on its account the sum of $28,857.02. Indications are that the great base at Cherry Point will be permanent in character and insure a large volume of freight and passenger business to this railroad. During the biennium, under the authority of Chapter 443 of the Ses-sion Laws of 1943, the State Treasurer has taken up the outstanding mortgage bonds of the Atlantic and North Carolina Railroad Company, and the State is now the sole creditor of this company. 27j biennial report of the attorney general 21 Advisory Opinions to Local Officials During the biennnium, the Department has continued the long standing custom of furnishing advisory opinions to county, city and local officials upon the many questions of administrative lawr and procedure which have arisen in local government. The opinions of this office, while not legally binding on the agency requesting same, have been accepted as the method of settlement of numerous questions which have arisen. The efforts of this office to respond to numerous requests received throughout this State for this character of advice have required ex-tensive investigations of the law, and have constituted an important part of our work. An effort is always made to secure the requests for the opinions through the local legal advisers of the various local units and clear the opinion of the office through them. Available funds do not permit the publication in full of the numerous opinions rendered to local officials. Digests of these opinions, however, are published periodically in Popular Governvfient, the magazine of the Institute of Government of the University of North Carolina. Summaries of these opinions affecting municipalities are carried in a digest mimeographed by the North Carolina League of Municipalities. The press of the State has carried periodically digests of all opinions of general application. State Banking Commission As an ex officio member of the State Banking Commission, the At-torney General has sat with meetings of this Commission throughout the biennium. The law creating this Commission makes the Attorney General and the State Treasurer ex officio members thereof, and in-cludes five members appointed by the Governor. The Commission meets quarterly and upon special call. A re-port of its activities will be made through the Commissioner of Banks. Reference is made to the case of Arthur Pue v. Hood, Commissioner of Banks, 222 N. C. 310, in which our courts upheld the discretionary power of the Banking Commission to refuse the application for a charter by an industrial bank. Teachers' and State Employees' Retirement System in North Carolina As required by the Act, Chapter 25, Public Laws 1941, the Attorney General has continued to act as the legal adviser of the Board of Trustees. The operations of this Agency have required, at frequent intervals, the advice of this office. Thus far, no litigation has arisen respecting its activities. Unemployment Compensation Commission As requested by the Unemployment Compensation Commission, the Attorney Gneral's Office has furnished the legal opinions on important questions which have arisen in connection with the application of its 22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. laws during the biennium. The Commission has its own able legal staff, but from time to time, it has found it desirable to call upon this office for legal opinions, which we have always been glad to render. Social Security Laws During the biennium, this office has continued to act as the legal adviser for the State Board of Charities and Public Welfare. The ex-tensive operations of the State Board of Charities and Public Welfare and its intimate contact with the life of the people of the State have given rise to numerous, and sometimes complicated, legal questions. Numerous opinions have been furnished to the State Board and its departments, particularly the department concerned with child welfare in adoption proceedings throughout the State. This office has likewise been called upon to render legal opinions and offer advice to the State Commission for the Blind. Important questions of relationships with the Federal Government have arisen during the biennium as to the work carried on by the workshops for the blind, operated by the State Commission for the Blind. Satisfactory adjustments for the controversy relating to this matter have been worked out by conferences with Federal officials. State Department of Agriculture The State Department of Agriculture, in the performance of the many and varied duties assigned by law to it and to the Commissioner of Agriculture and to the State Board of Agriculture, has had frequent occasions to call upon this office for services and legal advice. Numerous office conferences have been held and on occasions when public hearings were necessary to be had, involving adoption of rules and regulations, and in the enforcement of regulatory laws as to seed, feeds, and fertilizers and inspection of foods, etc., members of the Staff of this office have been called upon to participate. The broad powers given to the Commissioner of Agriculture and the State Board of Agriculture and the expanding function performed by this important Department require frequently a great deal of legal advice and service in ways too numerous to be mentioned. In all of which, we have had the finest cooperation from the Commissioner of Agriculture and the officials of his Department. Summary of the Constitutional and Statutory Duties of the Attorney General To make a report upon all the activities of the Attorney General and this Department, it would be necessary to go into greater detail than is possible in this summary. References are herein given to provisions of the Constitution of North Carolina, and laws enacted in pursuance thereto, prescribing the duties and functions of the Attorney General. As legal adviser to the Council of State and as a member of the various boards and commissions hereinafter listed, the participation of the Attorney General in the consideration of matters coming before 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 meetings of the Council of State and such boards and commissions will be disclosed in the reports made therefrom. It is not required that they should be further detailed in this Report. The Constitution of North Carolina, Article III, Section 13, provides that the duties of the "Attorney General shall be prescribed by law." Pursuant to this section, the General Assembly has vested in the Department of the Attorney General the following powers, obligations, and duties: G. S. 114-2. "Duties.—It shall be the duty of the attorney general — "1. To defend all actions in the supreme court in which the state shall be interested, or is a party; and also when requested by the governor or either branch of the general assembly to appear for the state in any court or tribunal in any cause or matter, civil or criminal, in which the state may be a party or interested. "2. At the request of the governor, secretary of state, treasurer, auditor, corporation commissioners, insurance commissioner or superintendent of public instruction, he shall prosecute and defend all suits relating to matters connected with their departments. "3. To represent all state institutions, including the state's prison, whenever requested so to do by the official head of any such institution. "4. To consult with and advise the solicitors, when requested by them, in all matters pertaining to the duties of their office. "5. To give, when required, his opinion upon all questions of law submitted to him by the general assembly, or by either branch thereof, or by the governor, auditor, treasurer, or any other state officer. "6. To pay all moneys received for debts due or penalties to the state immediately after the receipt thereof into the treasury." In addition to these duties, the following ones are prescribed: To institute actions to recover taxes due under the Revenue Act (G. S. 105-239), and to approve all tax refunds made by the State (G. S. 105-407). To enforce the statutes relative to monopolies and trusts (G. S. 75-9 to 75-15). To institute actions to prevent ulta vires acts on the part of cor-porations, or to dissolve corporations for certain offenses (G. S. 55-47, 55-124,55-126). To institute quo warranto proceedings to oust persons who have usurped, who unlawfully hold, or who have forfeited public offices, and to begin actions to protect State lands (G. S. 1-515). To see that the solicitors prosecute violations of the act relating to the practice of medicine (G. S. 90-21). To enforce charitable trusts (G. S. 55-47). To prescribe the rules of practice for land registration under the Torrens Act (G. S. 43-3). To institute proceedings for the dissolution of fraternal insurance societies (G. S. 58-297 to 58-298). To appear on behalf of the court or other officers on appeal in contempt proceedings (G. S. 5-3). To investigate extradition cases, at the request of the Governor (G. S. 15-58). 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. To institute actions to enforce the rulings and orders of the Utilities Commission, and to represent said Commission in the enforcement of intrastate rates before the Interstate Commerce Commission and in federal or state courts (G. S. 62-63 and 62-6). To give advice to the State Board of Elections as to the form of ballots (G. S. 163-141). To institute action against persons, firms or corporations who violate the terms of the act regulating the quality of agricultural seeds. This duty may be delegated to the attorney of the county or city in which the violation occurred (G. S. 106-284). To approve deeds and grants to the State of property given to, or purchased by, it for park purposes (G. S. 113-34). To collect from inmates of state institutions the cost of their upkeep, provided they are able to pay (G. S. 143-124). To approve the grant of easements by state institutions to public-service corporations (G. S. 143-151). To act as legal adviser and institute necessary condemnation pro-ceedings for the North Carolina Cape Hatteras Seashore Commission (Ch. 257, P. L. 1939). To enforce rules and regulations adopted by the Commissioner of Labor relating to safety devices (G. S. 95-13). To witness the burning of cancelled State bonds and coupons (G. S. 142-13). To collect the delinquent taxes due the State Board of Health (G. S. 130-13). The Attorney General is a member of, or adviser to, the following boards, councils, and commissions: Legal adviser to the Executive Department (Const., Art. Ill, S. 14); member of the State Board of Assessments (G. S. 105-273), of Advisory Board of Paroles (G. S. 148- 50), of State Banking Commission (G. S. 53-92), of Board of Public Buildings and Grounds (G. S. 129-2), of Municipal Board of Control (G. S. 160-195), of the Eugenics Board (G. S. 35-40); and the Board of Advisers of the World War Veterans Loan Fund (G. S. 143-71). Appeals in Criminal Cases In Exhibit II will be found a list of criminal cases which were argued by the Attorney General and his Assistants before the Supreme Court for the Fall Term 1942, Spring Term 1943, Fall Term 1943, and Spring Term 1944. Summary of Important Civil and Criminal Cases The following is a brief statement of matters involved in civil and criminal cases of more than usual interest and importance. Civil Cases Dan W. McLean v. Durham County Board of Elections, 222 N. C. 6 The plaintiff filed a petition in the Superior Court of Durham County for a mandamus to require the Durham County Board of Elections to print petitioner's name on the official ballot for the November 1942, 27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 election as the Republican candidate for Clerk of the Superior Court of Durham County. The nomination was made by the convention method instead of by participation in the primary election. A demurrer was filed to the petition in the Superior Court and when the cause came on to be heard on the demurrer, an order was entered sustaining the demurrer and denying the writ of mandamus. , The plaintiff ex-cepted and appealed to the Supreme Court. The case was heard in the Supreme Court and the judgment of the lower court was affirmed. Arthur Pue, et al. v. Gurney P. Hood, Commissioner of Banks, et al., 222 N. C. 310 The plaintiffs filed with the Secretary of State of North Carolina a proposed certificate of incorporation of an industrial bank. The Com-misisoner of Banks, after holding a public meeting, found certain facts find concluded that in his opinion the public convenience and advantage (vould not be promoted by the establishment of the proposed bank. The report was submitted to the State Banking Commission which directed the finding of additional facts and approved his conclusion. Thereafter, his conclusion was certified to the Secretary of State who declined to issue the proposed charter. The plaintiffs then instituted an action in the Superior Court of Guilford County to require the issuance of a charter to the proposed bank. The case was removed to Wake County and the defendants filed a demurrer to the complaint, on the ground that the complaint did not state facts sufficient to con-stitute a cause of action. When the cause came on to be heard in the Superior Court of Wake County, the demurrer was sustained and judgment entered dismissing the action. Plaintiff excepted and ap-pealed to the Supreme Court and, upon the matter being heard in the Supreme Court, the judgment of the court below was affirmed. J. M. Hunsucker, et al. v. Stanley Winhorne, et al., Constituting the Municipal Board of Control of North Carolina, 223 N. C. 650 The Municipal Board of Control of North Carolina, upon petition being filed on January 25, 1943, entered an order changing the name of the Town of Hemp to that of Robbins. The plaintiffs, who were citizens and taxpayers of the municipality, instituted an action to re-strain the execution of the order changing the name of the Town of Hemp to Robbins. The defendants filed a demurrer to the complaint and, upon the hearing in the Superior Court of Wake County, the demurrer of the defendants was sustained. The temporary restraining order theretofore granted was dissolved and the action dismissed. The plaintiffs appealed to the Supreme Court of North Carolina. The Supreme Court, in affirming the judgment of the court below, held that if the Municipal Board of Control should err in its findings, the error may be corrected by the Superior Court upon a writ of certiorari but there is no provision in the statute for an appeal. 26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. D. M. Warren, et al. v. A. J. Maxwell, et al., 223 N. C. 604 The plaintiffs, who constitute the Board of County Commissioners Board of Equalization and Review and Tax Supervisors of Chowan County, sought a peremptory mandamus to require the receivers of the Norfolk Southern Railroad Company to list with the State Board of Assessment for the year 1941, as a part of its track, roadbed and right of way, that part of its road running from Edenton, in Chowan County, to the Virginia state line, and to compel the State Board of Assessment to include the same in determining the pro rata part of the total valuation of the railroad in North Carolina to be apportioned to Chowan County for that year. In the Superior Court of Wake County, the defendants demurred ore tenus to the complaint on the ground that it failed to state a cause of action. The trial judge reserved his ruling on the demurrer and heard the matter on its merits. At the conclusion of all the evidence, upon motion of the defendants, judgment was entered nonsuiting the plaintiffs. Upon appeal to the Supreme Court, the judgment of the lower court was affirmed. State of North Carolina ex rel. North Carolina Utilities Commission v. Atlantic Greyhound Corporation, et al., 224 N. C. 293 The North Carolina Utilities Commission, in amending Rule No. 22 of its rules and regulations for the operation of union bus stations, required carriers operating from a common station where tickets are sold to a common destination to honor tickets of one another between said points. After the entry of the regulation making this change, the defendants, who are common carriers by motor vehicles engaged in the transportation of passengers within the State of North Carolina, filed with the Utilities Commission a special appearance and moved to vacate the amendment to Rule No. 22. The Utilities Commission denied the relief sought and the defendants appealed to the Superior Court of Wake County. In the Superior Court, the Utilities Commis-sion entered a motion to dismiss the appeal on the ground, among others, that the amendment to the rule objected to did not afford grounds and basis for an appeal by the defendants. The trial judge allowed the motion and judgment was entered dismissing the appeal. Thereupon, the defendants appealed to the Supreme Court. The Supreme Court, in affirming the judgment of the court below, held that no procedure for appeals to the courts from rules and regulations of the Utilities Commission having been prescribed by statute, the validity thereof could not be challenged by appeal. State of North Carolina ex rel., Utilities Commission v. Atlantic Greyhound Corporation, et al. The North Carolina Utilities Commission entered a general order or regulation requiring that the destination and connections of all buses operating out of union station be announced. The defendants, who are carriers and would be affected by the order or regulation, appeared before the Utilities Commission and moved that the order 27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 or regulation be vacated. Upon the refusal of the Utilities Commission to vacate the order or regulation, the defendants appealed to the Superior Court of Wake County. The Utilities Commission made a motion in the Superior Court of Wake County to dismiss the appeal on the ground that the promulgation of this rule or order did not afford ground and basis for an appeal by the defendant. The court allowed the motion and entered judgment dismissing the appeal. The defend-ants gave notice of appeal to the Supreme Court but have not, as yet, perfected their appeal. State of North Carolina ex rel., Utilities Commission v. Atlantic Coast Line Railroad Company, 224 N C. 283 The North Carolina Utilities Commission entered an order holding that the pulpwood rates contained in the Atlantic Coast Line Railroad Company's tariff schedule, to the extent that they exceeded the maxi-mum level permitted under an outstanding order of the Commission dated June 12, 1939, were unlawful and that the continued refusal to obey the previous order of the Commission rendered the Railroad Company liable to an action for the penalty prescribed by the statute. The defendant excepted to this order on the ground that the Utilities Commision was without authority to issue the order for the reason that the Commission had not proceeded in accordance with the statute, and that the tariff filed by the defendant was valid in every respect. The defendant's exceptions were overruled and, upon appeal to the Superior Court of Wake County, the ruling of the Utilities Commis-sion w^as in all respects affirmed. Upon appeal to the Supreme Court of North Carolina, the judgment of the Superior Court was upheld. Industrial Commission Cases Gilmore v. Board of Education This was an action instituted by the widow and children of Dean Gilmore, deceased, against the Hoke County Board of Education and its insurance carrier and the State School Commission. Gilmore suf-fered an injury to his right leg in a fall sustained while washing windows in the new gymnasium of the Hoke County High School. He later partially recovered from the injury but died before being able to return to work. Upon a hearing before the Commissioner, compensation was awarded against the Hoke County Board of Educa-tion and its insurance carrier. The Commissioner held that there was no liability as against the State School Commission. The same result was reached by the Full Commission and upon appeal to the Superior Court of Hoke County, the findings of fact and conclusions of law of the Commission were affirmed. The defendants appealed to the Supreme Court of North Carolina. The Supreme Court, in reversing the judgment of the court below, held that upon the evidence in the record, the death of Gilmore did not result proximately from the accident and that compensation was not allowable. Gilmore v. Board of Education, 222 N. C. 358. 28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Callihan v. Board of Education This was an action brought before the Industrial Commission against the Board of Education of Robeson County, the State School Commis-sion, et al., by the widow and children of William B. Callihan, deceased, for compensation under the provisions of the Workmen's Compensation Act. Callihan was a teacher of vocational agriculture in the Robeson County schools and was killed in an automobile accident on a public highway en route from St. Pauls to Lumberton to attend a monthly meeting in connection with his vocational work. The Commission held that the Robeson County Board of Education was the sole em-ployer and made an award against the County Board of Education and its insurance carrier. The Robeson County Board of Education and its insurance carrier appealed to the Superior Court, where the award was sustained and an appeal was taken to the Supreme Court. In the Supreme Court the judgment of the court below was sustained. Callihan v. Board of Education, 222 N. C. 381. J. J. Johnson v. North Carolina Department of Highway Patrol, Department of Revenue This was an action brought before the Industrial Commission by J. J. Johnson, a member of the North Carolina State Highway Patrol, on account of injuries sustained by jumping or stepping from the porch of his home in Alexander County. At the time of the injury, plaintiff had gone to his home for the purpose of eating his lunch. As he started to leave his house, he twisted his ankle by either jumping from or stepping from his porch instead of using the steps of the porch. The hearing Commissioner denied compensation and his action was ap-proved upon appeal to the Full Commission. The plaintiff thereupon appealed to the Superior Court of Alexander County and the trial judge entered judgment affirming the award of the Industrial Com^ mission, denying compensation to the plaintiff. No appeal was taken from this judgment. Kenneth M. Jones, Administrator of the Estate of Hollis Snipes, Deceased v. University of North Carolina This was an action brought by the administrator of the estate of Hollis Snipes, deceased, before the Industrial Commission, seeking to recover compensation under the provisions of the Workmen's Compensation Act for the death of Hollis Snipes, an employee of the University of North Carolina. Snipes sustained an injury by an accident arising out of and in the course of his employment when he was cut on the back of the left hand with a scythe. After several days had intervened, he was taken to a hospital in Durham. On the tenth day in the hospital, after he had almost entirely recovered, he developed pneumonia and within a short time died. Upon a hearing before the Commissioner, it was found that Snipes died from pneumonia and that the pneumonia was in no way related to the injury by accident to his hand. Claim for compensation was denied and the defendant did not appeal. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29 Jeannett A. Noel v. Edson B. Olds, et al. (Ackland Will Case) A statement of this case was contained in the last Biennial Report, apearing on pages 25, 26, and 27. At the time this Report was filed, the case was pending on appeal in the United States District Court of the District of Columbia. In this case, the next of kin of William Hayes Ackland were seeking to be declared entitled to receive the residuary trust created by Mr. Ackland, amounting to approximately $1,400,000, which had been willed to Duke University to create an art museum and memorial to the testator. Upon refusal of Duke University to accept the gift, the University of North Carolina intervened and asserted the right to receive the gift under the cy pres doctrine. Rollins College also claimed the benefit of the fund under the same doctrine. Former Governor O. Max Gardner was first to present this matter to the Board of Trustees of the University of North Carolina, and proposed to handle the litigation for the State without any compensa-tion for his services. The Attorney General has appeared in the litigation with Governor Gardner and his Washington, D. C. law firm. The case was ably argued by Governor Gardner for the University of North Carolina in the Circuit Court of Appeals of the District of Columbia, and resulted in an opinion written by Justice Justin Miller, in which the cy pres doctrine was upheld and declared ap-plicable to the case. The motion of the University of North Carolina to intervene was allowed and the case remanded to the District Judge for further procedure in accordance with the opinion. Justice Bailey, the District Judge, has entered an order asking for recommendations from the Trustees as to what institution of learning should be the main beneficiary of the gift from Mr. Ackland, and this matter is now pending in the District Court. W. F. Logan v. J. R. Cline, Sherijf, Edwin Gill, Commissioner of Revenue of North Carolina, and Charles M. Johnson, Treasurer This was an action instituted in the Superior Court of Cleveland County to recover privilege taxes assessed against plaintiff under the authority of Section 150 of the Revenue Act, and paid under protest. Judgment was rendered for the defendants and no appeal was taken by the plaintiff. State V. Thomas M. Stanton This was a prosecution in the Superior Court of Wake County commenced at the instance of the Commissioner of Revenue and based upon the defendant's violation of the provisions of Section 336 of the Revenue Act in failing to file his income tax return for the year 1940. After a true bill of indictment had been found by the Grand Jury, the defendant paid to the Commissioner of Revenue the sum of $686.89, representing all income tax, penalty and interest due for the years 1937-1940, both inclusive. At the trial, the defendant pleaded nolo contendere, whereupon, upon the recommendation of 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. the Commissioner, the Court continued prayer for judgment for five years on condition that the defendant annually file income tax returns as provided by law, and pay the costs. George Kostakes, Trading as Kostakes Novelty Company v. Edwin Gill, Commissioner of Revenue and G. Mack Riley, Sheriff of Mecklenburg County [n this action in the Superior Court of Mecklenburg County, the plaintiff sought an injunction against the defendants for the purpose of restraining them from proceeding with a tax execution agamst plaintiff's property. The Court dissolved the restraining order, and the case was settled by nonsuit upon the execution by the plaintiff of a note and mortgage for the tax indebtedness. G. H. Valentine, Executor of the Estate of Charles Treadwell Trask v. Edwin Gill, Commissioner of Revenue This was a controversy without action to determine whether the plaintiff was liable for inheritance tax assessed by the defendant and paid by the plaintiff under protest. The action involved a con-struction of Section 12 of the Revenue Act. Judgment was rendered in the Superior Court for the defendant. This judgment was affirn;ied on appeal to the Supreme Court. See 223 N. C. 396. Asheville Livestock Yards v. Edwin Gill, Commisioner of Revenue (2 cases) These were actions brought in the Superior Court of Buncombe County to recover privilege taxes assessed by defendant under Section 115 of the Revenue Act, and paid by plaintiff under protest. Judgment was rendered for plaintiff, and the defendant did not appeal. Leonard Safrit v. Ronald Hocutt, Director, Highway Safety Division This was a petition for the restoration of petitioner's driver's license. The matter was heard in the Superior Court of Carteret County. Judgment was rendered for the respondent, and no appeal was taken. C. B. Brown v. Edwin Gill, Commissioner of Revenue This was an action instituted in the Superior Court of Onslow County for the recovery of sales tax paid under protest to the de-fendant by the plaintiff. After a thorough investigation, the de-fendant consented to a judgment for plaintiff. James Cooper v. T. Boddie Ward, Commissioner of Motor Vehicles This was an action instituted in the Superior Court of Wake County by which the plaintiff sought a mandamus to compel defendant to return his driver's license which had been taken up by the Superior Court of Forsyth County. Judgment was rendered for the defendant 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 in the Superior Court. On appeal, the Supreme Court affirmed the judgment of the lower court, dismissing this action, but giving plaintiff the requested relief by treating the action as a petition for a writ of certiorari to the Superior Court of Forsyth County, and granting the writ and correcting the judgment of the Superior Court of Forsyth Coimty. See 224 N. C. 99 and 224 N. C. 100. State V. Nick D. Kaperonis This was a prosecution commenced in the Recorder's Court of the City of Charlotte at the instance of the Commissioner of Revenue against the defendant for a violation of Section 422 of the Revenue Act in the alleged willful filing of false sales tax returns. Upon the payment to the State, or a security for payment to the State, of over 316,000 in sales tax, penalties and interest, the Court accepted the defendant's plea of nolo contendere and continued prayer for judg-ment indefinitely. North Carolina Mortgage Corporation v. A. J. Maxwell, Commissioner of Revenue (tivo cases) The plaintiff submitted to a nonsuit in these actions in the Superior Court of Wake County, which involved franchise taxes on corporations formed to liquidate mortgages or mortgaged property taken in fore-closure. Burroughs Adding Machine Company v. Edwin Gill, Commissioner of Revenue This is an action commenced in the Superior Court of Wake County by the plaintiff, a foreign corporation, for the recovery of income and franchise taxes based on the alleged invalidity of the allocation formula prescribed in Sections 210 and 311 of the Revenue Act for the determination of the portion of plaintiff's capital stock, surplus, and undivided profits, and the portion of plaintiff's income, to be taxed by North Carolina. Answer has been filed and this action is now pending. General Motors Corporation v. Doughton (two cases) These actions were instituted in the Superior Court of Wake County in 1926 for the recovery of privilege license- taxes for the sale of auto-mobiles levied by Section 72 of the Public Laws of 1921 and Section 78 of the Public Laws of 1923 and 1925, and paid by the plaintiff under protest. The actions have never been disposed of and are still pending. State of North Carolina, in the Relation of the Commissioner of Revenue v. The American Tobacco Company This action in the Superior Court of Wake County has been pend-ing since 1940 and involves the question whether State income and franchise taxes may be measured, in part, by imported Turkish 32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Tobacco stored in customs warehouses in this State and awaiting manufacture. The Company contends that the imports clause of the federal constitution forbids the use, as a measure, of imported property in the original packages and still in customs custody. Criminal Cases State V. Howard, 222 N. C. 291 The defendant was indicted in the Superior Court of Wake County on two separate bills of indictment, one bill charging him with em-bezzling property of the State of North Carolina while an officer and agent of the State and cashier in the North Carolina Department of Revenue, and the other bill charging him with aiding and abetting one C. W. Snead, another officer and employee of the State, in embezzling property of the State. The defendant was convicted on both charges and appealed to the Supreme Court. The Supreme Court found no error in connection with the trial in the lower court. State V. Ward, 222 N. C. 316 The defendant, Robert L. Ward, Jr., was tried in the Superior Court of Wake County, North Carolina, on three bills of indictment charging embezzlement and aiding and abetting in the crime of em-bezzlement. The three cases were by consent consolidated for the purpose of trial and each bill considered as a separate count. From 1938 to 1941 the defendant was auditor and Chief of the Division of Accounts and Records in the Department of Revenue of the State of North Carolina. There was a verdict of guilty as to each count on which the defendant was tried and from the judgment pronounced on the verdict of the jury, the defendant appealed to the Supreme Court. After a careful examination of all the exceptions entered by the defendant in the lower court, the Supreme Court found no error of sufficient merit to justify a new trial. State V. Pelley, 222 N. C. 684 The defendant, William Dudley Pelley, was convicted in the year 1935 in the Superior Court of Buncombe County on the charge of a violation of the Capital Issues Law of the State of North Carolina. He was given a suspended sentence and thereafter the suspended sentence was put into effect and the defendant appealed to the Supreme Court of North Carolina, where the action of the lower court was affirmed — State v. Pelley, 221 N. C. 487. Pending his ap-peal to the Supreme Court of North Carolina, the defendant was released on a bail bond in the sum of $10,000.00 executed by the defendant, as principal, and Carrie Thrash Dorsell and George B. Fisher, as sureties. The bond was conditioned upon the appearance of the defendant at the next term of the Superior Court of Buncombe County to be held after the judgment of the Supreme Court of North Carolina was handed down and then and there to abide judgment 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33 of the court. The defendant failed to appear as required by the bond and was called and failed to answer. A set fas was issued and the sureties filed answer, contending that they had been relieved from liability on the bond, due to the fact that the defendant had been taken into custody by the United States Marshal for the Southern District of Indiana for removal to the United States District Court of the District of Columbia, upon an indictment charging certain federal offenses. Judgment absolute on the bond was entered in the court below and the sureties on the bond appealed to the Supreme Court assigning error. The judgment of the court below was af-firmed by the Supreme Court. State V. Lippard, 223 N. C. 167 The defendants, Carl Lippard and Paul Lippard, were indicted in the Superior Court of Mecklenburg County on the charge of a conspiracy to violate the laws of the State of North Carolina relating to intoxicating liquor. In the court below the defendants pleaded former jeopardy, contending that they had theretofore been tried for the offenses which were to be used as a basis for the establishment of the crime of conspiracy. The court below refused to allow the defendants' plea for dismissal based upon former convictions and double jeopardy and the defendants, after being convicted by the jury, excepted and appealed to the Supreme Court. The Supreme Court held that the charge of conspiracy to violate the law and the charge of the consummation of the conspiracy being an actual violation of the law are charges of separate offenses and that a conviction of one cannot be successfully pleaded as former jeopardy on an indict-ment for the other. No error was found in the trial below. State V. Williams and Hendrix, 224 N. C. 183 A series of North Carolina decisions hold that a divorce decree obtained from a North Carolina defendant in a State in which only the plaintiff is domiciled and in which the defendant is not personally served with process and makes no appearance will be treated as void in North Carolina. It was thought that these decisions were sanc-tioned by the decision of the United States Supreme Court in Haddock v. Haddock, 201 U. S. 562, but the constitutionality of the North Carolina rule was challenged in State v. Williams and Hendrix. The defendants, convicted of bigamous cohabitation in Caldwell County, had obtained in Nevada divorces from their North Carolina spouses on service by publication, had married, and had lived to-gether in North Carolina. Their contention that the Nevada divorce decrees were entitled to full faith and credit under Article IV, Sec-tion 1, of the United States Constitution, was rejected by the North Carolina Supreme Court in State v. Williams and Hendrix, 220 N. C. 445. A writ of certiorari was granted by the United States Supreme Court and the case was heard by that Court at the October Term, 1942. The United States Supreme Court overruled the decision of 34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Haddock v. Haddock, 201 U. S. 562, reversed the conviction of the defendants, and remanded the case for further proceedings, 317 U. S. 287. The Supreme Court of North Carolina remanded the case to the Superior Court of Caldwell County for a new trial, 223 N. C. 609. In this prosecution, the State proceeded upon the theory that the plaintiffs in the divorce actions had acquired no bona fide resi-dences in Nevada. The jury accepted the State's contentions and again returned a verdict of guilty. The North Carolina Supreme Court affirmed the conviction. A writ of certiorari was granted by the United States Supreme Court and the case will be heard by that Court at the October Term, 1944. State V. Gordon, 224 N. C. 304 The defendant, John Gordon, was tried in the Superior Court of Wake County on charges of violating certain provisions of the prohibition law. Whiskey had been delivered to a motor carrier in Maryland for delivery in South Carolina. The truck which was carrying the whiskey was found in the possession of the defendant with an automobile backed up to the rear thereof while the defendant was apparently in the act of transferring cases of whiskey from the truck to the car. In the trial, the judge instructed the jury that it was immateral that the whiskey was an interstate shipment if they (the jury) should find beyond a reasonable doubt that the defendant took possession of it and had it in his possession for the purpose of sale in this county. The jury returned a verdict of guilty and the defendant appealed to the Supreme Court. The Supreme Court af-firmed the conviction of the defendant, saying that a cargo of liquor started on its way as an interstate shipment may be diverted to unlawful purposes and the nature of the shipment does not license the one in possession to dispose of it at v/ill in this State. State V. Hall, 224 N. C. 314 The defendant, Bert Hall, was charged in the Recorder's Court of Cumberland County with unlawful possession and transportation of 323 cases of intoxicating liquor. To this charge he pleaded guilty, and judgment was thereupon rendered imposing sentence upon him, and also in accordance with the North Carolina statute, decreeing confiscation and forfeiture of the liquor. From this judgment there was no appeal. Subsequent to this conviction, Roadway Express In-corporated filed a petition and interplea in the cause in the Recorder's Court, alleging title to the 323 cases of liquor as bailee, and asked that immediate possession thereof be surrendered to it. The inter-pleader further alleged that it had no knowledge of any unlawful acts on the part of Hall; that Hall was not its employee; that it did not authorize Hall to maintain possession of the liquor except for the purpose of operating the truck and transporting the whiskey from Maryland to South Carolina, and that proper shipping papers were issued at the time of making the shipment. Judgment was entered in the Recorder's Court overruling the motion and interplea 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 of Roadway Express Incorporated, and confirming the disposition of the liquor as ordered in the original judgment in the criminal action. The petitioner appealed to the Superior Court.* It was thereupon ordered that the judgment of the Recorder be overruled and that Roadway Express Incorporated, as bailee, was entitled to the immediate possession of the 323 cases of whiskey. To this order the State and the Cumberland County Alcoholic Beverage Control Board excepted and appealed. The Supreme Court reversed the judgment of the Superior Court, holding that where one who was in possession of seized liquor at the time he was arrested for unlawful acts with respect thereto pleads guilty to or is convicted of charges of unlawful possession and unlawful transportation of this liquor and thereupon personal judgment is rendered against him, the provisions of G. S. 18-6 are mandatory that the judgment also order the confiscation and forfeiture of the liquor so unlawfully possessed and transported. The court held further that when a cargo of in-toxicating liquor, though started on its way as an interstate shipment, is diverted to unlawful purposes in violation of the law of the state in which it has come to rest, the initial character of the shipment does not clothe those in possession with immunity from prescribed penalties or oust the jurisdiction of the state courts, either as to person or property. OPINIONS TO GOVERNOR Double Office Holding; Clerk to Rationing Board and Notary Public 14 August, 1942. I have your letter of August 11, 1942, in which you inquire whether Mr. Lew Williams, who states that he is an "Assistant" to the Forsyth Rationing and War Price Board, would be disqualified to hold the office of Notary Public by reason of the fact that he is holding a Federal office. I am informed by the Office of Price Administration in Raleigh that technically there is no such position as "Assistant" to a ration-ing board. I assume, therefore, that Mr. Williams is a clerk to the board. Clerks to rationing boards do not have to exercise independent or official discretion with reference to matters that come before them. They act under instructions from the board and their acts are ratified by the board. Their work is primarily clerical in nature. The test of whether a position constitutes a public office within the meaning of our constitutional prohibition against double office hold-ing, as stated in State v. Smith, 145 N. C. 476, is whether the in-dividual involved is delegated some of the sovereign functions of the government. Where a person is merely an employee and his duties are clerical only, I do not think he would be considered a public officer. I, therefore, advise that there is no constitutional obstacle to the appointment of clerks and other clerical employees of a ration-ing board to the position of Notary Public. Officers; Dual Office Holding; Notary Public—Member of Home Guard 22 September, 1942. The constitutional provision against dual office holding, Article XIV, Section 7, excepts officers in the militia. Therefore, an officer in the Home Guard, which is a part of the State militia, would not be prevented thereby from at the same time acting as a Notary Public or holding any other office. I am enclosing you copy of the opinion rendered by me to Mr. Leonadas Hux on the subject of double office holding as affecting commissioned officers in the United States Army, Navy and Marine Corps. Inland Waterway 15 October, 1942. . I have your letter of October 13, enclosing copy of a letter from Colonel W. S. Moore, District Engineer, Wilmington, North Carolina, requesting the. State to provide a tract of land containing about 110 acres, located in Brunswick County about nine miles west of South-port, found to be necessary by the United States engineers in order [Vol. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37 to remove shoals which might interfere with the movement of oil in barges from Florida to northern points. He advises that an enlargement of the waterway from a channel of 8 feet deep and 75 feet wide to a channel of 12 feet deep and 90 feet wide was authorized by the River and Harbor Act of August 26, 1937, in which it was provided that local interests should furnish free of cost to the United States necessary rights-of-way and spoil disposal areas for new work and subsequent maintenance. You are requested to advise whether or not the State may be expected to furnish to the United States, without cost, the additional right-of-way now re-quired. Chapter 2 of the Public Laws of 1931, entitled "An Act to Provide a Right-of-way for the United States Government for the Inland Waterway from the Cape Fear River at Southport to the North Carolina-South Carolina Line," is the only authority which the State has to provide the right-of-way in this territory. This Act recites the Act of Congress approved July 3, 1930, authorizing the construc-tion of an Intracoastal Waterway from the Cape Fear River at South-port to and beyond the North Carolina-South Carolina State Line, in accordance with a report submitted to the 71st Congress, First Session, providing for a right-of-way of specified width, depending upon the elevation of the land above mean low water. The preamble of this Act recited that the State desired to accomplish the condition imposed upon local interests and furnish the right-of-way for the waterway as provided in the report of the engineers. No action has been taken by our Legislature since the Act of Con-gress of August 26, 1937, and I am unable to find any authority given by the Legislature of this State to provide any additional right-of-way for the United States, which is found to be necessary by reason of conditions referred to in the letter from Colonel W. S. Moore. The appropriation provided in Chapter 2 of the Public Laws of 1931 has been completely expended, and, in addition thereto, some funds were provided from the Contingency and Emergency Fund. I, therefore, regret to state that I am unable to advise you of any authority which would permit the State to provide the Federal Government with the additional land which is now needed. Notaries; Eligibility for Appointment; Residence Requirements 21 October, 1942. You inquire as to whether a person who resides in one county in the State is entitled to receive a commission as a notary public in another county in the State in which such person is temporarily employed. Section 3172 of Michie's North Carolina Code of 1939 Annotated provides that the Governor may, from time to time, at his discretion, appoint one or more fit persons in every county to act as notaries public and shall issue to each a commission. Section 3173 provides that upon exhibiting their commission to the Clerk of the Superior Court in the county in which they are to 38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. act, the notaries shall be duly qualified by taking before said Clerk an oath of office and the oaths prescribed for officers. It further provides that a certificate of the commission shall be deposited with the Clerk and filed among the records and that the Clerk shall note on his minutes the qualifications of the notary public. Section 3176 provides that notaries have full power and authority to perform the functions of their office in any and all counties of the State and full faith and credit shall be given to any of their official acts wheresoever the same shall be made and done. The Supreme Court of North Carolina, in the case of Harris v. Watson, 201 N. C. 661, holds that the office of notary public is a public office within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. Article 6, Section 7, of the Constitution of North Carolina, pro-vides that every voter in North Carolina, except as in Article 6 dis-qualified, shall be eligible to public office. Section 25 of the Election Laws of North Carolina, being Section 5937 of Michie's North Carolina Code of 1939 Annotated, provides that, subject to certain exceptions contained in Section 5936, every person who has been naturalized and who shall have resided in the State of North Carolina for one year and in the precinct, ward, or other election district in which he offers to vote four months next preceding the election shall, if otherwise qualified, be a qualified elector in the precinct or ward or township in which he resides. Although it is my thought that it might be advisable to confine the appointment of notaries public to the county in which they actually reside, I am unable to find anything in the statutes which, to my mind, would prevent the Governor of North Carolina from appointing a person a notary public in a county in which such person temporarily resides and intends to act, although the person's actual residence is in another county in the State. Purchase and Contract; Sale of Typew^riters Belonging to State 8 December, 1942. I acknowledge receipt of your letter of the 7th inst., in which you state that the Army and Navy are in immediate need of six hundred thousand typewriters, and that the typewriter manufacturers have converted their factories to the production of other more es-sential war materials, necessitating the War Production Board de-manding that typewriters be supplied by all business firms. State, county and local governments from those that are now in their possession. You inquire whether or not the State purchasing agency may sell to the Federal Government without competitive bidding when the funds so received are placed in a sinking fund, with the under-standing that when the war is over, additional money would be added in order that new typewriters may be purchased. While it is my understanding that the Department of Purchase and Contract requires competitive bidding for the sale of any State 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39 owned property, I find no statute specifically requiring that com-petitive bidding be had before typewriters and other articles of personal property can be sold. I am of the opinion that under the present national emergency, the State may sell to the Federal Gov-ernment typewriters and similar articles of personal property without competitive bidding. Criminal Law; Control and Treatment of Venereal Diseases; Maximum Sentence for Failure to Take Treatments 26 February, 1943. On yesterday Associate Justice Barnhill, of the Supreme Court of North Carolina, heard a petition for a writ of habeas corpus filed by one Ruby Ingle, who was tried in the police court of the City of Asheville on the 11th day of January on a charge that she wilfully failed, neglected and refused to take treatment for venereal disease, as provided by Section 3, Chapter 206, of the Public Laws of 1919. She was given a sentence of eight months in the common jail of Buncombe County to be worked under the supervision of the State Highway and Public Works Commission and was committed to the State Prison on January 18, 1943. At the time of the hearing, she had served over thirty days of her sentence. Section 7198 of Michie's North Carolina Code of 1939 Annotated, which is Section 8, of Chapter 206, of the Public Laws of 1919, provides : "Any person who shall violate any of the provisions of this part of this article or any lawful rule or regulation made by the North Carolina state board of health pursuant to the authority herein granted, or who shall fail or refuse to obey any lawful order issued by any state, county, or municipal health officer, pursuant to the authority granted in this article, shall be deemed guilty of a mis-demeanor, and shall be punished by a fine of not less than twenty-five dollars, nor more than fifty dollars, or by imprisonment for not more than thirty days." Justice Barnhill, on +he showing that the prisoner had served more than thirty days, granted the writ of habeas corpus and ordered the prison authorities of the State of North Carolina to release and discharge the prisoner. I am informed that there are several other women prisoners now confined in the Women's Division of the State's Prison who have been sentenced to be confined for a longer period than thirty, days solely for failure to take the treatment for venereal disease. Some of these prisoners are in need of further treatment and some, I am informed, do not need further treatment for venereal disease. Under the provisions of Section 7198, above referred to, the maximum sentence which may be imposed upon a defendant is thirty days imprisonment and those persons who are now in the Women's Division of the State Prison and who have served more than thirty days on a sentence pronounced under the provisions of this Section are being illegally detained, unless they require further treatment for venereal disease. 40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Under the provisions of Section 3, of Chapter 257, of the Public Laws of 1935, which appears in Michie's North Carolina Code of 1939 Annotated as Section 7716, the State Highway and Public Works Commission is authorized to provide within the bounds ol Central Prison at Raleigh, or elsewhere in the State, suitable quarters for women prisoners and arrange for work suitable to their capacity, and the several courts of the State are authorized to assign women convicted of offenses, whether felonies or misdemeanors, to such quarters so provided, but no woman prisoner is to be assigned to work under the supervision of the State Highway and Public Works Commission whose term of imprisonment is less than six months or who is under eighteen years of age. Therefore, the women prisoners who were sentenced under the provisions of Section 7198 of Michie's Code should never have been assigned to work under the supervision of the State Highway and Public Works Commission, but should have been retained in the common jail of the county in which they were tried. The prisoners who have been sentenced under the provisions of Section 7198, who need further treatment but who have served a longer period than thirty days, should not be discharged but should be held for further treatment. It is my thought that these prisoners should be returned to the counties from which they were sentenced so that the counties may hold them for further treatment. Hospitals for the Insane; Convicts Becoming Insane; Commitment TO State Hospital; Release or Transfer 24 March, 1943. I have checked the file you sent me relative to the case of one Rex Griggs who, while serving a sentence of from four to seven years at State's Prison, was admitted to the Criminal Insane Depart-ment of the State Hospital at Raleigh. It seems that Griggs' sentence expired on September 30, .1942, and that his mother desires that he be transferred to the State Hospital at Morganton. On December 2, 1942, in reply to an in-quiry from Dr. J. F. Owen, Superintendent of State Hospital at Raleigh, I expressed the opinion that Dr. Owen w^ould not be author-ized to order the transfer of Griggs to the State Hospital at Mor-ganton. I am enclosing herewith a copy of my letter to Dr. Owen. Upon receipt of your file, I rechecked the statutes relating to the various hospitals for the insane and I find that, under the pro-visions of Section 6163 of Michie's North Carolina Code of 1939 An-notated, it is provided: "The Board of Directors are authorized to make such rules and regulations as in their discretion may- seem best for the transfer of patients from one state hospital for the insane to another state hospital for the insane; and they are further authorized to transfer from one hospital for the insane to another hospital for the insane any funds appropriated for permanent improvement or maintenance if in their discretion and judgment it may become advisable or necessary." 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 41 It will be noted that at the time of the enactment of this 'par-ticular Section one Board of Directors had charge of both the State Hospital at Raleigh and the State Hospital at Morganton. There-after, the law was changed so as to provide for a separate board for each institution and Section 6163 might have been, by implication at least, rendered ineffective. However, this particular statute was carried forward in the new Code and as the last General Assembly provided for a central board for the various State Hospitals, this board might, under the authority contained in Section 6163, provide for the transfer of patients from one hospital to another, provided the persons to be transferred would not be considered in the class of the dangerous insane. Of course, I am very much in sympathy with Mrs. Griggs in trying to do what she thinks is the best for the welfare of her son. Uniform Drivers License Act; Suspension, Revocation and Restoration of License April 9, 1943. You inquire as to the authority of the Governor to reinstate or issue a new license to a person whose driver's or chauffeur's license has been revoked by the Motor Vehicle Department after conviction in court has become final for operating a motor vehicle upon the streets and highways of the State under the influence of intoxicating liquors. You also inquire if such person is apprehended for operating his car during the period of revocation and has his license revoked for an additional period of time, whether or not the Governor may reinstate his driver's license at the end of the first revocation period but before the end of the period of the additional twelve months' revocation. Section 2621(161) of the Consolidated Statutes provides: "The Department shall forthwith revoke the license of any operator or chauffeur upon receiving a record of such operator's or chauffeur's conviction for any of the following offenses when such conviction has become final: "2. Driving a motor vehicle while under the influence of in-toxicating liquor or a narcotic drug. "(b) The Department, upon receiving a record of the convic-tion of any person upon a charge of operating a motor vehicle while the license of such person is suspended or revoked, shall immediately extend the period of such first suspension or revoca-tion for an additional like period." Section 2621(162) of the Consolidated Statutes provides: "The Department shall not suspend a license for a period of more than one year and upon revoking a license shall not iTii any event grant application for a new license until the ex-piration of one year." It can thus be seen that it is mandatory upon the Department to revoke the license of a person who has been convicted for driving under the influence of intoxicating liquors, and it cannot grant application for a new license until the expiration of one year. 42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. It will also be seen that under Paragraph (b) of Section 2621(161) that upon a person's being convicted for operating a motor vehicle during the period of the revocation of his license, shall immediately have his license revoked and extend the period of such first sus-pension or revocation for an additional like period. The nearest approach to the Governor's authority to reinstate the license of a person who has been convicted of operating a motor vehicle under the influence of intoxicating liquors or has had his license revoked for operating the same during the period of the first revocation is under Article III, Section 6, of the Constitution which gives to the Governor certain pardoning powers. The Constitution gives the Governor power to pardon criminals and commute sentences imposed upon them which have been imposed incidental to the conviction of crime. The decisions uniformly hold that the revocation or suspension of a license under the terms of the Uniform Drivers License Act is not a punishment for crime. The State has power to grant operators licenses upon reasonable conditions, or to revoke or suspend such licenses upon a violation of these conditions. The law requiring or authorizing the Motor Vehicle Department to revoke a driver's license when the driver has been convicted of a violation of the provisions of the Act, does not impose a penalty, but on the contrary, it is entirely disconnected with any punishment or burden to be imposed upon a convicted person because of the crime he has committed. It is purely a police measure under authority of the police power of the State and for the protection of the public, and the fact that the violation of these conditions may also be a criminal offense is not material. See the case of Commonwealth v. Funk, 186 Atlantic Reporter 65; People V. Cohen, 217 N. Y. S. 726-728 and Hedrick v. Maryland, 235 U. S. 610-632. I am, therefore, of the opinion that the Governor of the State of North Carolina does not have the statutory power or the pardoning power granted to him by the Constitution to restore a driver's or chauffeur's license to a person who has been convicted for the violation of a provision of the Uniform Drivers License Act, and who has had his license revoked by the Motor Vehicle Department as directed under Section 2621(161) of the Consolidated Statutes. Extradition; Waiver; Expense of Returning Fugitive 14 April, 1943. The correspondence and bill covering the expense of returning one Taylor Harris to Guilford County from Centerville, Alabama, has been submitted by you to this office for consideration. You desire my opinion as to whether the State of North Carolina would be justified in paying the expense of returning Taylor Harris to Guilford County for trial. It appears from the correspondence that no application was made to you as Governor requesting the extradition of Harris. It follows that no demand was made by you on the Governor of Alabama for the return of this person. This identical question was raised by Hon- 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL . 43 orable H. L. Koontz, Solicitor of the Twelfth District, on February 28, 1940, and in answer to the request of Mr. Koontz for an opinion this office wrote as follows: "You state that the Police Department of the City of Greensboro has sent you an itemized statement of a bill for expenses incurred in returning to this State a fugitive from justice, a felon, who was returned by the Police Department of Greensboro from Florida, without going through the formality of an extradition proceeding. "This identical question has been the subject of consideration by this Office before. On the 5th of April 1937, the then Attorney General Seawell rendered an advisory opinion to Sheriff Clark of Bladen County, wherein he held that 'the State will not pay expenses even in such a case unless the requisition is demanded by the Governor of this State and an agent named to transport the prisoner. In cases other than felonies, the expenses must be paid by the county.' "And, again on the 10th of July 1935, in a similar situation, this office advised Mr. B. L. Fentress, County Attorney, of Greensboro, as follows: " 'It is the opinion of this office that Consolidated Statutes, Section 4556, applies only where the Governor of this State has actually made a requisition on the Governor of another state for a fugitive from justice. We are of the opinion, also, that 4556 (v) should be taken into conjunction with 4556, and unless actual requisition has been made by the Governor, that the costs of returning a prisoner to this . State, who has waived extradition, should be borne by the county.' "The same conclusion w^as reached in another similar case in an advisory opinion addressed to Mr. Charles Hughes, County Attorney at Newland, North Carolina, on the 4th of December, 1935." The conclusion reached in the letter to Mr. Koontz is still the opinion of this Office. Double Office Holding; Notary Public and Member of County Board of Elections 1 July, 1943. You state in your letter of June 30 that it appears from an ap-plication filed by Mr. Fred R. Seeley of Beaufort, North Carolina, as a Notary Public, that Mr. Seeley is now a member of the Board of Elections of Carteret County. You desire to know whether, in my opinion, the membership of Mr. Seeley on the County Board of Elections would interfere with his appointment as a Notary Public. Article XIV, Section 7, of the Constitution of North Carolina, provides : "No person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this State, or under any other state or government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a seat in either house of the General Assembly; Provided, that nothing herein contained ' shall extend to officers in the militia, justices of the peace, com-missioners of public charities, or commissioners for special purposes." 44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. This office has held on numerous occasions that a Notary Public and membership on the County Board of Elections are both offices within the meaning of this Constitutional provision. I would recommend that Mr. Seeley resign as a member of the County Board of Elections before qualifying as a Notary Public. However, our Supreme Court has held, in the case of Whitehead v. Pittman, 165 N. C. 89, that the acceptance of a second office by one holding a public office operates ipso facto to vacate the first In the case of Barnhill v. Thompson, 122 N. C. 493, one of the cases on which the opinion in the above case was based, it was held that the officer has the right to elect which office he will retain and that his election is deemed to have been made when he accepts and qualifies for the second office. The acceptance of the second office is, of itself, a resignation of the first. Appropriations; Board of Charities and Public Welfare; Surplus Commodity Division; 1943-1944 3 August, 1943. I received your letter of August 2, with enclosures, having reference to the appropriations made by Chapter 530 of the Session Laws of 1943, page 593, Item 12, for the year 1943-1944, of a total of $226,470.00 to the Board of Charities and Public Welfare, and par-ticularly with reference to the appropriation included therein of $54,830.00, under the heading of V-8 in the Budget Report, entitled "Surplus Commodity Division." I have very carefully considered the question presented in this correspondence, as to whether or not some part of this appropriation of $54,830.00 could be used by the Board of Charities and Public Welfare in cooperation with the State Department of Public Instruc-tion in carrying out the lunch room program made possible by the availability of an appropriation made by Congress of fifty million dollars, which includes approximately $1,250,000.00 estimated as North Carolina's pro rata share to be used to reimburse the lunch room program sponsors for local purchases of food from farmers and food merchants. I understand also, in addition to this program, that the Federal Government will make available for distribution to the school lunch rooms surplus commodities of the same nature and character as was in contemplation at the time the General Assembly of 1943 enacted the Appropriations Act. After consultation with Mr. R. G. Deyton, Assistant Director oi the Budget, I am of the opinion that the appropriation of $54,830.00 referred to, to the Board of Charities and Public Welfare could be legally employed to provide the funds necessary for the operation of the lunch room program, to be expended by the State Board of Charities and Public Welfare in cooperation with the State De-partment of Public Instruction and under a budget approved by the Budget Bureau. In my opinion, this expenditure will substantially carry out, in part, the program contemplated by the General As-sembly in making the above referred to appropriation. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 Extradition; Arrest 14 August, 1943. I have before me a letter to you from Mr. B. L. Lytton, of B. L. Lytton & Associates of Knoxville, Tennessee, under date of August 10, complaining on account of the failure of the Sheriff of Gaston County to arrest J. Caswell Taylor on a warrant charging a felony, issued in Knoxville, Tennessee, and sent by the sheriff of that county to the Sheriff of Gaston County. Under our extradition law, Michie's Code 4556(13), it is provided that a warrant can be issued for the arrest of a person in this State tried for the commission of a crime in another state, upon affidavit being made charging the commission of such crime and, when arrested, held to await extradition (Michie's Code 4556(15)). An arrest may also be made without a warrant for an offense punishable by death or imprisonment for a term exceeding one year, but complaint must be made under oath, setting forth the offense (Michie's Code 4556(14)). C. S. 4550 authorizes a warrant to be issued for the arrest of a person who is a fugitive who is charged with a capital crime and certain felonies. The Sheriff of Gaston County would not be authorized to arrest the defendant on a warrant issued by a court in Tennessee, as the issuing court has no authority to direct a sheriff of a county in this State to make the arrest. I, of course, am not informed as to why the Sheriff of Gaston County has not acknowledged the correspondence referred to in the letter from Mr. Lytton. Military Personnel; Jurisdiction of State Courts 14 August, 1943. I have before me a letter to you from Major General William Bryden, under date of August 2, 1943, in which he requests you to make a statement of policy with reference to the jurisdiction of the State courts over military personnel and the method of handling arrests made by military personnel for violations of State and military laws. I have considered very carefully General Bryden's letter, together with the statement of policy he has requested you to sign. I am attaching hereto a copy of a letter from this office, under date of July 22, 1942, written to Honorable W. Y. Bickett, Solicitor, on the subject of General Bryden's letter. You will observe from this copy that a conclusion was reached by me in accordance with the position taken by General Bryden as to the respective authority of the civil and military authorities. I believe, therefore, that you might properly make the statement of policy as to these matters requested by General Bryden, but I do think that in all cases the necessary formalities should be gone through with so that the military personnel arrested would not be discharged from arrest except upon a proper order of the judge of the court which has jurisdiction to try the case. If the offense committed is a felony and the case is pending in the Superior Court, it is my opinion that a formal application in writing should be made by the commanding officer of the person arrested, asking for the sur- 46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. render of the prisoner to be properly dealt with by the military authorities. Upon such request being made, it would be in order, if the judge concurred in the views expressed by this office, to make an order directing the surrender of the prisoner to the commanding of-ficer of the person arrested. In misdemeanor cases, it would seem proper that an order should be made by the court having jurisdiction, of a similar character in order that military personnel arrested would not be informally dis-charged from arrest without necessary and proper record being made. It is my understanding that the commanding officers in the various camps in the State have approved proceedings for applying the sug-gestions made as to the manner of securing the release of military personnel from our State authorities. I believe that any statement of policy which you should promulgate should carry with it the require-ment above suggested. Militia; Home Guard; Winston-Salem; Greensboro; High Point 7 December, 1943. In a conference held in your office recently with some of the municipal officials of the Cities of Winston-Salem, Greensboro and High Point, and officers of the Home Guard located in these Cities, the status of these organizations was considered in view of Sections 6894 and 6895(a) of the Consolidated Statutes, which read as follows: Section 6894. "If any person shall organize a military company, or drill or parade under arms as a military body except under the militia laws and regulations of the state, or shall exercise or attempt to exercise the power or authority of a military officer in this state, without holding a commission from the governor, he shall be guilty of a misdemeanor." Section 6895(a). "It shall be unlawful for any person not an officer or enlisted man in the United States army, navy, or marine corps, to wear the duly prescribed uniform of the United States army, navy, or marine corps, or any distinctive part of such uniform, or a uniform any part of which is similar to a distinc-tive part of the duly prescribed uniform of the United States army, navy, or marine corps. . . ." I am enclosing herewith a copy of a letter from Capt. D. D. Edmunds of the Winston-Salem unit to Mayor Garland of Gastonia, which I assume properly describes the organization of the several Home Guard units. In this conference it was urged by the municipal officials and officers of the Home Guard that their units did not constitute a military organization within the purview of the above quoted sections, but were in the nature of organizations of auxiliary policemen named by the mayor or governing body of the interested cities. I was requested to study the city charters as to any provisions authorizing the naming of auxiliary policemen. The city charter of the City of Greensboro, as amended by Chapter 230 of the Private Laws of 1927, contains the following provision: "... Provided, that for any emergency the city manager may appoint temporary police officers without examination. . . ." 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL , 47 The Winston-Salem city charter, as amended by Chapter 232 of the Private Laws of 1927, contains the following: "Sec. 23. . . . In times of emergency the mayor may appoint temporary additional policemen for such time as shall appear necessary, not exceeding one week, who shall take the same oath and be subject to the same control as regular policemen. ..." I find no charter provision authorizing the City of High Point to name special auxiliary policemen. It will be observed that each one of these charter provisions merely authorizes the appointing official to appoint temporary police, and in the case of Winston-Salem, this appointment is limited to one week. In the case of Wilson v. Mooresville, 222 N. C. 283, our Supreme Court said: "Though the town may make rules for their regulation, such policemen as may be appointed are vested with the same powers and duties as peace officers, and are circumscribed by, and are subject to the same limitations upon such powers and duties. . . . It has no authority to enlarge or to restrict their powers and duties as peace officers conferred upon them by the Legislature." The jurisdiction of the temporary police authorized under the quoted sections of the charters of the interested cities is limited to the cor-porate limits of the respective city or one mile radius beyond. Such police officers would not have authority to make arrests or otherwise serve as policemen beyond such territory, and making an arrest with-out a warrant outside of such territory would constitute an assault. If such police officer is injured while in the performance of his duties as police officer beyond his jurisdiction, he would not be entitled to the benefits of the Workmen's Compensation Act. Wilson v. Moores-ville, 222 N. C. 283. Leave of Absence; Solicitor; Entering Service Without Military Commission 28 December, 1943. I have your letter of December 27, in which you advise that one of the Solicitors of the State will shortly be inducted into Military Service under the Selective Service System, and the Solicitor entering the Service would like to have a leave of absence and have an acting solicitor appointed in his place. You advise that he is not being commissioned as an Officer, but will enter the Army as a Private. You submit the following questions : 1. Is it within my power to grant the requested leave of absence or is it necessary to consider that the induction of the solicitor into Military Service will terminate his tenure of the office of solicitor making it necessary for me to appoint a new solicitor instead of an acting solicitor for the period covered by leave of absence? 2. In the event of my appointment of either a new solicitor or an acting solicitor, is such an appointment for the unexpired term of office or is it required to be only until the next general election? As the Solicitor entering the Military Service will not be com-missioned as an Officer but will enter the Army as a Private, I am 48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. of the opinion that, under authority of Chapter 121 of the Public Laws of 1941, you would have the authority to grant the leave of absence on the condition that this official will not receive any salary during the period of the leave of absence, and, under the statute, no leave of absence granted will operate to extend the term of office of the official beyond the period for which he was elected. This statute provides that, if you deem it necessary, you may appoint any citizen of the State, without regard to residence or district, as acting official or substitute for the period of the leave of absence, such appointee to have all the authority, duties, perquisites, and emolu-ments of his principal. As the Solicitor mentioned will not accept a commission, there would be, in my opinion, no dual office holding within the prohibition of Article 14, Section 7 of the State Constitution. The public policy of the State has been declared in the 1941 statute, having this identical problem in mind, and the law above referred to was passed for the specific purpose of authorizing you as Governor to grant the leave of absence for Military Service of "any elective or appointive State official." I therefore think that you could properly grant the leave of ab-sence upon the application of the Solicitor for the duration of the existing state of war, with the proviso that the leave of absence would not extend beyond the present term of office for which the Solicitor has been elected. This, I believe, answers both the questions you submitted. Leave of Absence; Comptroller, State Board of Education; Double Office Holding; Acceptance of a Commission as Captain in the United States Army 29 December, 1943. I have your letter of December 27, in which you advise that Honorable Nathan Yelton, Comptroller of the State Board of Educa-tion, has accepted a commission as Captain in the United States Army and has been assigned for special work with the Allied Military Governments, having entered upon his duties as such on December 27, 1943. You state that this presents the question as to whether or not Captain Yelton can be granted a leave of absence, and also, whether or not it will be possible for the State Board of Education, w^ith the approval of the Governor, to name an Acting Comptroller, or whether his acceptance of a commission terminates his tenure of office, making it necessary to appoint or elect his successor for the unexpired portion of the term of his appointment. I have today conferred with you about the subject of your letter and advised you that, in my opinion, no satisfactory answer could be secured to this question except through the medium of the opinion of the Chief Justice and Associate Justices of the Supreme Court of North Carolina. The identical question has not been presented under the circumstances of this case to our Court. I am enclosing herewith a copy of the memorandum on this subject from which you will observe that some of the Courts of other states have held that 27j biennial report of the attorney general , 49 the acceptance of a commission of the character accepted by Captain Yelton would prevent him from holding the office under the authority of the State, while in other jurisdictions, the Courts have reached a contrary conclusion. The nearest approach to this question in our State is found in the matter of J. G. Martin, 60 N. C. 153, in which, at the request of Governor Zebulon B. Vance, an opinion of the Justices was rendered, in which it was held that the acceptance of the office of Brigadier General under the Confederate States vacated the office of Adjutant General of North Carolina held by the person accepting the Con-federate States' office. This case, however, was decided on the basis of incompatibility of the two offices, although the constitutional provision then existing was substantially similar to Article IV, Section 7 of our Constitution. On account of the great importance and emergency of this question, I feel confident that the Chief Justice and Associate Justices of the Supreme Court, at your request, would be willing to render you their advisory opinion, and I recommend this course. Judges of Superior Court; Commissions to Judges; Authority to Act Within a District or a County 6 January, 1944. I have your letter of January 4, 1944, with the letter from Honorable Leo Carr. The case to which Judge Carr referred is Shepard v. Leonard, 223 N. C. 110. In that case, under an agreement of exchange with Honor-able Q. K. Nimocks, Jr., the Judge regularly holding the courts of the Seventh Judicial District, Honorable Hubert E. Olive was com-missioned "to hold the said court of the County of Wake: second week regular civil term, January 18, in the Seventh Judicial District." Under the above commission, the Court held that Judge Olive was without authority to sign an order in a civil action pending in Franklin County although Franklin County is within the same judicial district. At page 113 of Shepard v. Leonard, supra, Barnhill, J., observes: "While under the constitutional provision the power and authority of special judges is or may be that of regular judges of the Superior Court, these judicial powers are to be exercised by special judges only 'in the courts which they are so appointed to hold.' The authority vested in the General Assembly to provide for the appointment of special judges and to define their juris-diction is subject to this definite limitation and the General As-sembly is without power to grant jurisdiction to special judges in excess thereof. Greene v. Stadiem, 197 N. C. 472, 150 S. E. 18; Reid v. Reid, supra; Ipock v. Bank, 206 N. C. 791, 175 S. E. 127. "Speaking to the subject in Ipock v. Bank, supra, Brogden, J., says : 'Therefore, it is manifest that the power of special and emergency judges is defined and bounded by the words "in the courts which they are so appointed to hold".' "Civil actions pending on the civil issue docket of a county are always subject to motion in the cause. These motions may be made before the judge at term. In many instances they may be 50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol, made out of term. When made at term the judge presiding, whether regular or special, has jurisdiction. To this extent Sec. 5, Ch. 51, Public Laws 1941, has full constitutional sanction. "However, the Constitution, Art. IV, Sec. 11, does not confer or authorize the Legislature to confer any 'in chambers' or 'vaca-tion' jurisdiction upon special judges, assigned to hold a designated term of court. "It may be said that a regular judge holding the courts of the district has general jurisdiction of all 'in chambers' matters aris-ing in the district. Why then is not this jurisdiction conferred on a special judge by the statute within the limitations of the Con-stitution? "The general 'vacation' or 'in chambers' jurisdiction of a regular judges arises out of his general authority. Usually it may be exer-cised anywhere in the district and it is never dependent upon and does not arise out of the fact that he is at the time presiding over a designated term of court or in a particular county. As to him, it is limited, ordinarily, to the district to which he is assigned by statute. It may not be exercised even within the district of his residence exceot when specially authorized by statute. Ward v. Agrillo, 194 N. C. 321, 139 S. E. 451; Howard v. Coach Co., 211 N. C. 329, 190 S. E. 478. "Under the statute, Ch. 51, Public Laws 1941, enacted pursuant to Art. IV, Sec. 11, of the Constitution, a special judge, during the term of the court he has been assigned to hold, has full and com-plete jurisdiction over all actions and proceedings on the dockets of that court and may act in respect thereto with the same authority and to the same extent as a regular judge holding the court under statutory assignment. This includes the right to hear and decide any and all motions made in causes pending on the dockets and to grant any and all proper orders in respect thereto. Once having acquired jurisdiction at term he, by consent, may hear the matter out of term nunc pro tunc. Edmundson v. Edmundson, 222 N. C. 181. "On the other hand, he has no 'vacation' jurisdiction and no jurisdiction in any cause pending in any other county either within or without the same judicial district. Any attempt by the Legisla-ture to confer such jurisdiction goes beyond the limitations 'in the courts which they are so appointed to hold' and is without con-stitutional sanction." Sometime ago, in response to an inquiry by Honorable C. W. Tillett of Charlotte, concerning this same case, a form was prepared in this office for a commission to a special judge which would confer authority on the special judge so commissioned to act at any place within the district to the same extent as the regular judge assigned to hold the courts of said district. Of course, the special judge would have such authority only during the period for which his commission authorizes him to act. In case the fo
Object Description
Description
Title | Biennial report of the Attorney-General of the State of North Carolina |
Other Title | Biennial report and opinions of the Attorney General, State of North Carolina |
Contributor | North Carolina. Department of Justice. |
Date | 1942; 1943; 1944 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Banking law--North Carolina Children Corporations--North Carolina Criminal law Education Election law Game laws Judicial statistics--North Carolina Insurance Liquor laws Local government Marriage law Public health Public officers--North Carolina Schools Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1929-1945) Depression and World War Two |
Description | Title varies slightly.; Report period irregular.; On July 1, 1939 the Attorney General became head of the newly created Dept. of Justice. |
Publisher | Raleigh :N.C. Dept. of Justice,1899-[1970](Guy V. Barnes, printer to Governor's Council) |
Agency-Current | North Carolina Department of Justice |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | 37 v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 41056 KB; 750 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaced By | North Carolina..Department of Justice..North Carolina Attorney General reports**0364-362X |
Title Replaces | North Carolina.Department of Justice..Attorney General's report |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19421944.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | Slj^ library Itttorsttg of Nnrtl) (Harolitta OloUfrtion af Nnrll| Olaroltntana C34-0 I?* 4- 2/44- y UNIVERSITY OF N.C. AT CHAPEL HILL 00033944769 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION BIEN N lAL REPORT OF THE ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA VOLUME 27 1942- 1944 Harry McMullan attorney general George B. Patton W. J. Adams, Jr. Hughes J, Rhodes assistant attorneys general LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 Term of Office Avery, Waightsill 1777-1779 Iredell, James .-.. 1779-1782 Moore, Alfred 1782-1790 Haywood, J. John...... -. ...1791-1794 Baker. Blake 1794-1803 Seawell, Henry 1803-1808 Fitts, Oliver 1808-1810 Miller. William , .' ...1810-1810 Burton. Hutchins G....: 1810-1816 Drew, William :: 1816-1825 Taylor, James F :.. 1825-1828 Jones, Robert H ...1828-1828 Saunders, Romulus M ...1828-1834 Daniel, John R. J 1834-1840 McQueen, Hugh 1840-1842 Whitaker, Spier 1842-1846 Stanly, Edward 1846-1848 Moore, Bartholomew F 1848-1851 Eaton, William .1851-1852 Ransom. Matt W. .....1852-1855 Batchelor, Joseph B 1855-1856 Bailey, William H 1856-1856 Jenkins. William A 1856-1862 Rogers. Sion H .1862-1868 Coleman, William M 1868-1869 Olds, Lewis P 1869-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L. , 1872-1876 Kenan. Thomas S 1876-1884 Davidson. Theodore F 1884-1892 Osborne, Frank I 1892-1896 Walser, Zeb V 1896-1900 Douglas, Robert D. ...1900-1901 Gilmer, Robert D 1901-1908 Bickett. T. W 1909-1916 Manning. James S 1917-1925 Brummitt, Dennis G ...1925-1935 Seawell, A. A. F ...1935-1938 McMuIIan, Harry 1938- LETTER OF TRANSMITTAL O 00 tr cr 1 November. 1944 To His Excellency J. Melville Broughton, Governor Raleigh, North Carolina Dear Sir: In compliance with statutes relating thereto, I herewith transmit the report of the Department of Justice for the biennium 1942-1944. Respectfully yours, Harry McMullan, Attorney General. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/biennialrep1942attrny1944 EXHIBIT I Civil Actions Disposed of or Pending in the Courts of North Carolina and in Other Courts Pending in Superior Courts of North Carolina C. A. Blackwelder Will case (Stonewall Jackson Training ' School). State ex rel. Beaufort County v. H. P. Webster. Burroughs Adding Machine Company v. Gill, Commissioner of Revenue. Church V. American Equitable Assurance Company, et al. County of Craven v. Each and All Property Ow^ners, etc. R. L. Lewis and Huger King v. Charles M. Johnson, State Treasurer. Morrison v. Williams, et al. Plummer, et al. v. H. E. King, Trustee. State ex rel. Department of Conservation and Develpoment v. Odie Johnson, et al. In Re : Liquidation of United Bank and Trust Company. General Motors Corporation v. Doughton (two cases). State ex rel. Maxwell, Commissioner of Revenue v. American Tobacco Company. State ex rel. N. C. Corporation Commission v. Southern Railway Company. Disposed of in Superior Courts of North Carolina Commissioners of Chowan County v. State Board of Assessment, et al. M. D. Harris, et al. v. Maxwell, Commissioner of Revenue. State ex rel. Johnson, State Treasurer v. Wachovia Bank and Trust Company. B. S. Colburn v. First National Bank and Trust Company, et al. City of Raleigh v. State Hospital at Raleigh. Hunsucker, et al. v. Winborne, Commissioner, et al. J. J. Johnson v. N. C. Department of Highway Patrol. State ex rel. Utilities Commission v. Atlantic Greyhound Corp., et al. (2 cases). State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company. Arthur Pue, et al. v. Hood, Commissioner of Banks. Southern Railway Company v. Rockingham County. N. C. Mortgage Corporation v. Maxwell, Commissioner of Revenue. 6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. W. F, Logan v. Cline, Sheriff, Commissioner of Revenue, et al. State V. Thomas M. Stanton. Geo. Kostakes, etc. v. Gill, Commissioner of Revenue. Valentine, Executor v. Gill, Commissioner of Revenue. Asheville Livestock Company v. Gill, Commissioner of Revenue. Safrit v. Hocutt, Director of Highway Safety Division. Brown v. Gill, Commissioner of Revenue. Cooper V. Ward, Commissioner of Motor Vehicles. Southern Dairies, Inc. v. Maxwell, Commissioner of Revetiue. Caswell Training School v. T. A. Loving Company. James W. Davis, et al. v. Davis Hospital, Inc., et al. Hyde County v. A. D. MacLean Estate, et al. Eric Norden v. State Board of Education. Disposed of in Municipal Recorder's Court State v. Nick D. Kaperonis. Pending Before Industrial Commission L. O. Hill V. Forsyth County Board of Education. Disposed of Before Industrial Commission L. L. Guy V. N. C. Board of Alcoholic Control. Wilhemina H. Smith v. Thomasville Board of Education, ec al. Lois B. Callihan, et al. v. Board of Education, et al. J. J. Johnson v. N. C. Department of Highway Patrol. Jones, Administrator v. University of North Carolina. Disposed of in North Carolina Supreme Court Arthur Pue, et al. v. Hood, Commissioner of Banks, 222 N. C, 310. Mattie Gilmore, et al. v. Hoke County Board of Education, et al.. 222 N. C. 358. Lola Beacham CaUihan v. Board of Education, et al., 222 N. C. 381. Dan W. McLean v. Durham County Board of Elections, 222 N. C. 6. Valentine, Executor v. Gill, Commissioner of Revenue, 223 N. C. 396. Thompson v. State of North Carolina, et al., 223 N. C. 340. Hunsucker, et al. v. Stanley Winborne, et al., 223 N. C. 650. Warren, et al. v. State Board of Assessment, et al., 223 N. C. 604. James Cooper v. T. Boddie Ward, Commissioner, 224 N. C. 99. State ex rel. Utilities Commission v. Atlantic Greyhound Corp. (2), 224 N. C. 293. State ex rel. Utilities Commission v. Atlantic Coast Line R, R. Co., 224 N. C. 283. In Re: Yelton, 223 N. C. 845. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 Pending in United States Supreme Court Williams and Hendrix v. State of North Carolina (new case). Disposed of in United States Supreme Court Eldon Steele v. State of North Carolina. Williams and Hendrix v. State of North Carolina. Charlie Herndon v. State of North Carolina. Carl Lippard v. State of North Carolina. Mayo V. United States of America. Pending in United States District Court United States of America v. 166.77 acres in Buncombe County. United States of America v. 1,028.238 acres in Onslow County ( Kesler ) . United States of America v. 10,866.93 acres in Onslow County (Wynne). United States of America v. Southern States Power Company, et al. United States of America ex rel. Tennessee Valley Authority v. Geo. G. Whitcomb, et al. Disposed of in United States District Court United States of America v. Nathan Mayo, et al. United States of America v. State of North Carolina ( Test Farm at Swannanoa). Pending in District Court of Appeals Jeamiette A. Noel v. Edson B. Olds, Jr., et al. (Ackland Will case ) . Disposed of Before Federal Power Commission In re : Declaration of Intention of Nantahala Power and Light Company, etc. (Fontana Project). EXHIBIT II List of Criminal Cases Argued by the Attorney General and His Assistants Before the North Carolina Supreme Court: Fall Term, 1942; Spring Term, 1943; Fall Term, 1943; Spring Term, 1944. FALL TERM, 1942 State V. Allen, from Johnston; murder first degree; defendant appealed; no error; 222 N. C. 145. State V. Anderson, from Wayne; manslaughter; defendant ap-pealed; new trial; 222 N. C. 148. State V. Baker, from Cumberland; manslaughter; defendant ap-pealed; new trial; 222 N. C. 428. State V. Barefield, from Craven; larceny; defendant appealed; appeal dismissed. State V. Baynes and Dunnagan, from Davidson; violating munici-pay ordinance; defendants appealed; Baynes, new trial; Dunna-gan, reversed; 222 N. C. 425. State V. Bonner, et al., from Columbus; murder first degree; defendants appealed; new trial; 222 N. C. 344. State V. Broom, from Mecklenburg (2 cases) 1—murder first degree; 2—murder second degree; defendant appealed; new trial; 222 N. C. 324. State V. Champion, from Vance; murder second degree; defend-ant appealed; new trial; 222 N. C. 160. State V. Christopher, from Yancey; violating municipal ordi-nance; defendant appealed; reversed (per cur.) 222 N. C. 98. State V. Colson, from Currituck; violating liquor laws; defendant appealed; no error; 222 N. C. 28. State V. Cromer, from Stokes; felonious burning; defendant ap-pealed; reversed; 222 N. C. 35. State V. David, from Lenoir; murder second degree; defendant appealed; new trial; 222 N. C. 242. State V. Davis, from Wilkes; assault with deadly weapon; de-fendant appealed; new trial; 222 N. C. 178. State V. Debnam, from Franklin; manslaughter; defendant ap-pealed; new trial; 222 N. C. 266. State V. DeGraffenreid, from Lee; manslaughter; defendant ap-pealed; new trial; 222 N. C. 113. State V. Dove, from Harnett; murder second degree; defendant appealed; appeal dismissed (per cur); 222 N. C. 162. State V. Duncan, from Buncombe; bastardy; defendant appealed; affirmed; 222 N. C. 11. State V. Forte, from Forsyth; abortion; defendant appealed; reversed; 222 N. C. 537. [Vol. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9 State V. Goss, from Wilkes; manslaughter; defendant appealed; no error; 222 N. C. 751. State V. Hairston, from Forsyth; rape; defendant appealed; no error; 222 N. C. 455. State V. Harris, from Bertie; rape; defendant appealed; no error: 222 N. C. 157. State V. High, et al., from Wilson; operating junk yard in resi-dential section; defendant appealed; reversed; 222 N. C. 434 State V. Howard, from Wake; embezzlement; defendant ap-pealed; no error; 222 N. C. 291. State V. Jones, from Beaufort; assault with intent to commit rape; defendant appealed; affirmed; 222 N. C. 37. State V. H. King, from Buncombe; violating liquor laws; defend-ant appealed; appeal dismissed; 222 N. C. 137. State V. G. King, from Cabarrus; larceny; defendant appealed; no error; 222 N. C. 239. State V. McLeod, from Harnett; violating liquor laws; defendant appealed; error and remanded; 222 N. C. 142. State v. Meares, from Robeson; murder first degree; defendant appealed; no error; 222 N. C. 436. State v. Moore, from Columbus; nonsupport; defendant ap-pealed; no error; 222 N. C. 356. State v. Neal, from Forsyth; murder first degree; defendant ap-pealed; no error; 222 N. C. 546. State v. Norton, from Scotland; assault with deadly weapon; de-fendant appealed; new trial; 222 N. C. 418. State V. Patterson, from Craven; violating liquor laws; defend-ant appealed; appeal dismissed; 222 N. C. 179. State V. Reddick, from Forsyth; receiving stolen goods; defend-ant appealed; no error; 222 N. C. 520. State V. Reynolds, from Stokes; breaking and entering; defend-ant appealed; no error; 222 N. C. 40. State V. Shine, from Duplin; violating liquor laws; defendant ap-pealed; no error; 222 N. C. 237. State V. Tennant, from Wake; embezzlement; defendant ap-pealed; no error; 222 N. C. 277. State V. Todd, from Columbus; murder first degree; defendant appealed; reversed; 222 N. C. 346. State V. Tola, from Cumberland; violating liquor laws; defendant appealed; no error; 222 N. C. 406. State V. Vincent, from Durham; rape; defendant appealed; no error; 222 N. C. 543. State V. Ward, from Wake; embezzlement; defendant appealed; no error; 222 N. C. 316. State V. Wellman, from Iredell; rape; defendant appealed; no error; 222 N. C. 215. Docketed and Dismissed on Motion State V. Phillips, from Durham. State V. Whetstine, from Rutherford. 10 ' BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. SPRING TERM, 1943 State V. Auston, from Guilford; murder second degree; defend-ant appealed; no error; 223 N. C. 203. State V. Baxley, from Robeson; statutory rape; defendant ap-pealed; no error; 223 N. C. 210. State V. Boyd, et al., from Franklin; possessing burglar tools; de-fendants appealed; reversed; 223 N. C. 79. State V. Burrage, from Stanly; murder first degree; defendant appealed; new trial; 223 N. C. 129. State V. Clarke, et als., from Catawba; appeal from judgment absolute against bond; defendants appealed; appeal dismissed; 222 N. C. 744. State V. E. Davis, from Franklin; assault with deadly weapon with intent to kill; defendant appealed; new trial; 223 N. C. 57. State V. H. Davis, from Wake; nuisance, gambling, etc.; defend-ant appealed; affirmed; 223 N. C. 54. State V. Farrell, from Durham; rape; defendant appealed: new trial; 223 N. C. 321. State V. Friddle, et al., from Guilford; breaking, entering and larceny; defendants appealed; new trial; 223 N. C. 258. State V. Grass, from Cabarrus; murder first and second degrees; defendant appealed; no error; 223 N. C. 31. State V. Gray, from Mecklenburg; violating liquor laws; defend-ant appealed; no error; 223 N. C. 120. State V. Herndon, from Robeson; operating building for purpose of prostitution, etc.; defendant appealed; no error; 223 N. C. 208. State V. Hunt, et al., from Robeson; rape; defendants appealed; no error; 223 N. C. 173. State V. Lippard, et al., from Mecklenburg; conspiracy to violate liquor laws; defendants appealed; no error; 223 N. C. 167. State V. McKinnon, et al., from Moore; murder second degree; defendants appealed; no error; 223 N. C. 160. State V. Miller, et al., from Robeson; manslaughter; defendants appealed; new trial; 223 N. C. 184. State V-. Nesbit, from Mecklenburg; Assault on female; no juris-diction; appeal dismissed. State V. Pelley, et al., from Buncombe; appeal from judgment absolute against bond; Dorsett and Fisher appealed; affirmed; 222 N. C. 684. State V. Rice, from Madison; murder second degree; defendant appealed; new trial; 222 N. C. 634. State V. Smith, from Columbus; seduction; defendant appealed; no error; 223 N. C. 199. State V. Trippe, from Pasquotank; rape; defendant appealed; no error; 222 N. C. 600. State V. Utley, from Montgomery; murder first degree; defendant appealed; no error; 223 N. C. 39. 27 J BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 State V. Watson, from Bertie; murder first degree; defendant appealed; no error; 222 N. C. 672. State V. Wilborn, (See "State v. Boyd, et al."). Docketed and Dismissed on Motion State V. Bryant, from McDowell. State V, Isley, from Rockingham. State V. Lee, from Camden. State V. Moody, from Northampton. State V. Wilfong, from Catawba. FALL TERM, 1943 State V. Bentley, from Caldwell; assault with deadly weapon; defendant appealed; no error; 223 N. C. 563. State V. Biggs, et als., from Guilford; murder first degree; defend-ants appealed; new trial; 224 N. C. 23. State V. Cameron, et al., from Lee; larceny; defendants appealed; reversed; 223 N. C. 449. State V. Cameron, from Lee; larceny; defendant appealed; no error; 223 N. C. 464. State V. Campbell, from Durham; doing business without license; defendant appealed; reversed; 223 N. C. 828. State V. Case, from Guilford; manslaughter; defendant appealed; no error (per cur.) ; 223 N. C. State V. Cummings, from Robeson; assault on female; defendant appealed; no error (per cur.); 223 N. C. State V. Davis, from Pasquotank; murder second degree; defend-ant appealed; no error; 223 N. C. 381. State V. DeGraffenreid, from Lee; murder second degree; defend-ant appealed; new trial; 223 N. C. 461. State V. Dillard, from Wayne; abortion; defendant appealed; no error; 223 N. C. 446. State V. EUerbee, from Richmond; manslaughter; defendant ap-pealed; new trial; 223 N. C. 770. State V, Epps, et al., from Robeson; larceny; defendants appealed; no error; 223 N. C. 740. State V. Farrell, from Durham; rape; defendant appealed; no error: 223 N. C. 804. State V. Grainger, from Columbus; murder first degree; defend-ant appealed; no error; 223 N. C. 716. State V. Grass, from Cabarrus; murder first degree; defendant appealed; judgment affirmed; appeal dismissed (per cur.); 223 N. C. State V. Gregory, from Johnston; assault with deadly weapon with intent to kill; defendant appealed; error and remanded; 223 N. C. 415. State V. Harris, from Hoke; murder first degree; defendant ap-pealed; no error; 223 N. C. 697. 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. State V. Herndon, from Robeson; operating house of prostitution; defendant appealed; appeal dismissed. State V. C. Hill, et al., from Guilford; perjury; defendant Hill appealed; new trial; 223 N. C. 711. State V. N. Hill, from Guilford; violating liquor laws; defendant appealed; no error; 223 N. C. 753. State V. Holbrook, from Wilkes; larceny; defendant appealed; new trial; 223 N. C. 622. State V. Jackson, from Onslow; sale of beer and whiskey (two cases); defendant appealed; affirmed (per cur.,); 223 N. C. State V. Lowery, from Rowan; involuntary manslaughter; de-fendant appealed; reversed; 223 N. C. 598. State V. McKeon, from Edgecombe; breaking, entering and larceny; defendant appealed; affirmed; 223 N. C. 404. State V. O'Connor, et al., from Harnett; forfeiture of bond; de-fendant surety appealed; affirmed; 223 N. C. 469. State V. Oxendine, et al., from Scotland; receiving stolen goods, etc.; defendants appealed; reversed; 223 N. C. 659. State v. Prince, from Swain; murder second degree; defendant appealed; new trial; 223 N. C. 392. State V. Redfern, from Wake; murder first degree; defendant ap-pealed; no error; 223 N. C. 561. State V. Rising, from New Hanover; breaking, entering and larceny; defendant appealed; no error; 223 N. C. 747. State V. Smith, from Warren; murder first degree; deffendant appealed; no error; 223 N. C. 457. State V. Suddreth, from Caldwell; violating liquor laws; defend-ant appealed; reversed; 223 N. C. 610. State V. Tyson, from Pitt; assault on female; defendant appealed; error and remanded; 223 N. C. 492. State V. Vicks, from Chowan; rape; defendant appealed; no error; 223 N. C. 384. Docketed and Dismissed on Motion State V. Poole, from Pasquotank. SPRING TERM, 1944 State V. Ballard, from Harnett; assault with intent to commit rape; defendant appealed; no error (per cur.); 224 N. C. State V. Dill, from Madison; nonsupport; defendant appealed; reversed; 224 N. C. 57. State V. Dry, from Cabarrus; assault with deadly weapon; defendant appealed; appeal dismissed; 224 N. C. 224. State V. Gay, from Harnett; assault with intent to commit rape; defendant appealed; new trial; 224 N. C. 141. State V. Gordon, from Wake; violating liquor laws; defendant and petitioner appealed; defendant, no error; petitioner, ap-peal dismissed; 224 N. C. 304. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 State V. Graham, C, from Bladen; violating liquor laws; defend-ant appealed; error and remanded; 224 N. C. 347. State V. Graham, M., from Bladen; violating liquor laws; defend-ant appealed; no error; 224 N. C. 351. State V. Hail, from Cumberland; violating liquor laws; state ap-pealed; reversed; 224 N. C. 314. State V. Ham, et al., from Johnston; robbery; defendant appealed; Ham and T. Hardy, no error; R. Hardy, reversed; 224 N. C. 128. State V. King, from Guilford; operating lottery; defendant ap-pealed; no error; 224 N. C. 329. State V. Miller, et al., from Catawba; fornication and adultery; defendant Miller appealed; no error; 224 N. C. 228. State V. Nunley, from Rockingham; attempted larceny; defend-ant appealed; reversed; 224 N. C. 96. State V. Oldham, from Forsyth; vagrancy; defendant appealed; reversed; 224 N. C. 415. State V. O'Connor, et al., from Harnett; forfeiture of bond; surety defendant appealed; affirmed (per cur.); 224 N. C. State V. Register, et al., from Harnett; assault with deadly weapon with intent to kill; defendants appealed; no error (per cur.); 224 N. C. State V. Rivers, from Alamance; manslaughter; defendant ap-pealed; no error; 224 N. C. 419. State V. Robinson, et al., from Forsyth; operating lottery; de-fendants appealed; error and remanded; 224 N. C. 412. State V. Sawyer, et al., from Camden; highway robbery; defend-ants appealed; no error; 224 N. C. 61. State V. Summerlin, from Caldwell; nonsupport; defendant ap-pealed; reversed; 224 N. C. 178. State V. Todd, from Cumberland; murder second degree; defend-ant appealed; no error; 224 N. C. 358. State V. Truelove, et al., from Harnett, abduction; defendants ap-pealed; no error; 224 N. C. 147. State v. Walsh, et al., from Caldwell; assault with intent to com-mit rape; defendants appealed; new trial; 224 N. C. 218. State V. Williams, et al., from Caldwell; bigamous cohabitation; defendants appealed; no error; 224 N. C. 183. Docketed and Dismissed on Motion State V. Couch, from Yadkin. SUMMARY Affirmed on defendant's appeal 66 Reversed on State's appeal ..._ . 1 New trial or reversed on defendant's appeal 41 Error and remanded 5 Appeal dismissed _ _ 17 130 14 biennial report of the attorney general [vol. 27] Fees Transmitted by Attorney General to State Treasurer Since February Term, 1942, Through February Term, 1944 State V. Smith $ 10.00 State V. Batson __ : 10.00 State V, Reynolds 10.00 State V. King 10.00 State V. Dove 10.00 State V. Howard 10.00 State V. King 10.00 State V. Ward 10.00 State V. Shine 10.00 State V. Moore 10.00 State V. Tennant , 10.00 State V. Reddick 10.00 State V. Duncan 10.00 State V. Tola ,....: 10.00 State V. Trippe : 10.00 State V. Pelley :. . 10.00 State V. Clarke 10.00 State V. Turner 10.00 State V. Gray 10.00 State V. Lippard 10.00 State V. Herndon 10.00 State V. Smith 10.00 State V. Auston ...... 10.00 State V. Davis 10.00 State V. Davis : 10.00 State V. Southern Railway 14.30 State V. McKeon 10.00 State V. Dillard 10.00 State V. Cameron 10.00 State v. Jackson .: 10.00 State V. Jackson 10.00 State V. Bentley 10.00 State V. Hill 10.00 State v. Grainger J. 10.00 State V. Case ..: 10.00 State V. Epps : 10.00 State V. Harris 10.00 State V. Cummings -.-. 10.00 State V. Ham, et al 10.00 State V. Register, et al 10.00 State V. Williams, et al 10.00 State V. Truelove 10.00 State V. Gordon 10.00 State V. Ballard 10.00 State V. King 10.00 State v. Todd 10.00 State v. Miller 10.00 State V. Graham 10.00 State V. Hall '. 10.00 $494.30 SUMMARY OF ACTIVITIES Staff Personnel On July 13, 1942, Mr. T. W. Bruton, Assistant Attorney General, was granted a leave of absence on account of having accepted a com-mission as Captain in the United States Army. Since that time Mr. Bruton has been promoted to the rank of Major and is now on active duty. Mr. H. J. Rhodes, Attorney at Law of Burlington, was appointed Assistant Attorney General upon granting the leave of absence to Mr. Bruton and Mr. Rhodes has been serving in that capacity until this time. Other important changes in personnel have occurred during the biennium. Mr. Harry W. McGalliard, who was Director of the Division of Legislative Drafting and Codification of Statutes, was called into service in August 1943, and was granted a leave of absence for the duration of the war. Mr. J. Bourke Bilisoly, who had been serving as a member of the staff of this Division, was named as Acting Director and has served in that capacity until the present time. Mr. Moses B. Gillam, Jr., was called into service in December 1943, and was granted a leave of absence. Mr. Joel Denton was appointed as a member of the staff to succeed Mr. Gillam. He served with us until he resigned, effective July 1, 1944, to accept a position in private employment. Mr. J. E. Tucker served as a member of the staff throughout the biennium. For the last half of the second year of the biennium, the personnel of the staff of the Division of Legislative Drafting and Codification of Statutes was, as contemplated, reduced to a director and stenographer. Mr. George B. Patton, Assistant Attorney General, has served throughout the biennium and Mr. W. J. Adams, Jr., Assistant Attorney General, has likewise served during this period. Mr. Adams is assigned to the Revenue Department under the terms of the statute and has had as his assistant, Mrs. Cornelia McKimmon Trott. The secretarial personnel during the biennium has been as follows: Mrs. Margaret York Wilson, Mrs. Lorraine H. Allers, Miss Lillian Turner, Miss EfRe McLean English and Miss Marjorie Mann. Division of Legislative Drafting and Codification of Statutes As was authorized by the 1941 General Assembly, a Legislative Edition of the General Statutes of North Carolina was prepared and submitted to the General Assembly of 1943. The preface of the Legisla-tive Edition gave in full the legislative history of the General Statutes and the work done in its preparation by this office and the commissions, both legislative and voluntary, which had been set up to cooperate with the Attorney General's office in the preparation and submission of this extensive work. The Legislative Commission appointed by the General Assembly of 1941 filed its recommendations, which were made a part of the Legislative Edition, and recommended the enactment of the General Statutes in the form presented by this office. Chapter 16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. 33, entitled "An Act Revising and Consolidating the Public Statutes of the State of North Carolina," was unanimously enacted by the General Assembly, providing that this revision of our statutory law should be in force from and after the 31st day of December 1943, and providing that all public and general statutes not contained in the General Statutes of 1943 be repealed. Certain exceptions and limi-tations are set out in Chapter 164, entitled "Concerning the General Statutes of 1943." This enactment made the General Statutes the official statement of the statutory law of the State. The publication of the General Statutes by The Michie Company was delayed on account of war conditions affecting the printing in-dustry but all four volumes have now been distributed and are in the hands of the purchasers. Chapter 192 of the Session Laws of 1943 authorized the purchase by the Governor and Council of State of not to exceed three hundred and fifty sets of the General Statutes, to be distributed to the judges of the Superior Court, the solicitors, the clerks of the Superior Court, and justices of the Supreme Court, the Supreme Court Library, and to various State officials, departments and agencies for any proper State use. Acting on this authority, the Governor and Council of State authorized the purchase of 293 sets at $22.50 per set. This dis-tribution was in addition to one hundred and seventy sets of the four-volume edition which were donated by the publisher, as a part of its contract for the publication, and distributed to members of the General Assembly of 1943. Along with the submission of the Legislative Edition of the General Statutes to the General Assembly, there were submitted a great many recommendations of the Division correcting obvious errors in existing statutes, repealing obsolete statutes and clarifying obscure statutes. Joint committees in the House and Senate set up by the General As-sembly of 1943 considered many of these recommendations and favorably reported the bill carrying many of the recommendations into effect. This bill was enacted as Chapter 543 of the Session Laws of 1943. Due to the fact that there were many recommendations which tht legislative coinmittees were unable to consider on account of lack of time, the General Assembly, by Joint Resolution No. 23, set up a commission composed of twelve members, five from the Senate and seven from the House, to continue the study of the recommendations for statutory revision and correction and directed that the report should be filed at the next General Assembly. At the time this is written, the commission is considering various recommendations made by the division and other changes in statutory law which will be pre-sented to the General Assembly in the report of the commission. Continuous Statutory Research and Revision Chapter 382 of the Session Laws of 1943 amended the Act creating the Department of Justice, by establishing a system of continuous statutory research and revision in the Division of Legislative Drafting .and Codification of Statutes. This Act provides : 27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 17 "In order that the laws of North Carolina, as set out in the General Statutes of North Carolina, may be made and kept as simple, as clear, as concise and as complete as possible, and in order that the amount of construction and interpretation of the statutes required of the courts may be reduced to a minimum, it shall also be the duty of the division of legislative drafting and codification of statutes to establish and main-tain a system of continuous statute research and correction. To that end the division shall: "1. Make a systematic study of the general statutes of the State, as set out in the General Statutes and as hereafter enacted by the General Assembly, for the purpose of ascertaining what ambiguities, conflicts, duplications and other imperfections of form and expression exist therein and how these defects may be corrected. "2. Consider such suggestions as may be submitted to the division with respect to the existence of such defects and the proper correction thereof. "3. Prepare for submission to the General Assembly from time to time bills to correct such defects in the statutes as its research discloses." The author of this bill is Mr. Robert Moseley, member of the Greensboro, North Carolina Bar, who is a member of the House. In an excellent article appearing in the June 1944 issue of the North Carolina Law Review, Mr. Moseley gives a very complete statement of the object and purposes of this legislation and the things it is hoped to accomplish thereby. Anyone interested in this subject will gain a great deal of information on the reading of this article. Due to the fact that the Division of Legislative Drafting and Codifica-tion of Statutes was unable to complete its work on the North Carolina Statutes until the latter part of the summer of 1944, very little work has been done as contemplated by this statute. The division has been cooperating with the commission appointed by the General Assembly of 1943, with a view of carrying forward the work necessary to correct the errors and omissions in the existing statutes as contemplated by the resolution appointing this commission. The division consists of a director and secretary. Its staff was reduced on January 1, 1944, which has necessarily imposed limitations on its accomplishments under this important statute. The work on the General Statutes having been completed and when the work of the commission studying the corrections and clarification of the statutes above referred to has been completed, it is planned to concentrate upon the work required by Chapter 382. It is obvious that to carry forward the important work contemplated by this statute, the personnel of this division should be increased. Recommendations with respect to this of a more specific character will be made during the 1945 session. Supplements to General Statutes The contract made with the publishers of the General Statutes contemplates that each six months there shall be issued a pocket supplement of each volume containing all statutory enactments there-after made and annotations up to date. The first issue of this pocket 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. supplement has been promised by the publishers for some time during the month of September 1944. Following a meeting of the General Assembly and as soon thereafter as possible, another supplement will be issued codifying and annotating the laws enacted at that session. With these pocket supplements, the General Statutes will be kept up to date as to statutory changes and court decisions set out in the annotations. Legislative Drafting It \vas a source of great satisfaction to the entire staff of the At-torney General's office, including the members of the Division of Legislative Drafting and Codification of Statutes, to be called upon to such a great extent by the members of the General Assembly of 1943 for assistance in the preparation of bills. With these calls, and with calls from State and local officials, the entire staff of the At-torney General's office was needed in the preparation of more than one thousand acts w^hich were drafted in this office. This is a service which the office is very glad to render, with the hope that it may result in benefit to members of the General Assembly in bill-drafting and in clarity and unification of our statutes with existing laws. Apprecia-tion is expressed for Joint Resolution No. 34, adopted by the General Assembly of 1943, with respect to this work. Division of Criminal and Civil Statistics During the biennium the work in this division has been in the charge of Mr. Clifton Beckwith. A report of the activities of this division has been prepared by Mr. Beckwith and is made a part of this statement. There is included as a part of the report a compilation of statistics covering the activities of our criminal courts, other than courts of justices of the peace, and a summarization of civil cases tried in our Superior Courts. A recommendation was made in the last Biennial Report that a bill be enacted authorizing the inclusion in each bill of costs in each civil and criminal case of a fee of ten cents to be paid to the reporting officer of the superior and inferior courts making the reports, which by law are required to be made to this department. The making of these reports requires considerable amount of time and attention of the clerks and the payment of this fee would be a strong inducement to secure these reports promptly and completelj^ State Bureau of Investigation There is included in this biennial report a report made by Mr. Thomas Creekmore, Director of the Bureau of Investigation, covering fully the activities of his division during the biennium. The character of the work being done by the State Bureau of Investigation is being more fully understood and appreciated by the sheriffs and police officers, courts and the public concerned in criminal investigations. This bureau has made available for every section of the State the services of well-trained criminal investigators of crimes requiring scientific study. The bureau has been fortunate in maintaining a high 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 class of personnel during the biennium and, with the limited number of investigators, has done an outstanding work in many important criminal cases. Recommendation: It is anticipated everywhere that following the ending of the war and the adjustments which will have to be made thereafter, we may reasonably expect a substantial increase in crime throughout the State. This increase, if it occurs, will make further demands upon this bureau and require the employment of an ad-ditional number of special agents. I recommend that an appropriation be made available in the event such condition arises, so that this need may be taken care of. Revenue Department and Motor Vehicle Department Toe levy and collection of taxes imposed by the Revenue Act necessarily requires a large amount of legal assistance. Under the statute. Assistant Attorney General W. J. Adams, Jr., has during the bienrsium been assigned to the Revenue Department and as his assist-ant he has had the help of Mrs. Cornelia McK. Trott. With our constantly expanding tax system and tax collections, legal problems arisiiig in this department have been greatly multiplied. The legal work required of the office of the Commissioner of Motor Vehicles has likewise been largely imposed upon Mr. Adams and his assistant. The heavy burden placed upon this office in performing its services constitutes part of the basis of my recommendation that the next General Assembly should authorize the appointment of one additional Assistant Attorney General. Under the law as it now is, the number of Assistant Attorneys General w^hich may be appointed is limited to three. In the event the General Assembly should authorize the increase of the number of Assistant Attorneys General to four, the staff of this office would still have all the work it could do. By comparison with the legal staffs in other states, it would seem that the staff in North Carolina, after this increase is made, will still be much less than any other state of comparable size. In Indiana, for instance, which is not as large a state as North Carolina, there are sixteen Assistant Attorneys General. Fortunately for us, the amount of tax litigation in this State has been small. If we had as much tax litigation as is found in other states, the staff provided would be totally inadequate to handle it. Office Conferences and Consultations With State Offices and Departmental Officials As required by the State Constitution, Article III, Section 14, and the laws enacted in pursuance thereto, this office has continued to serve as the legal adviser for the executive department. Throughout the bienium we have had frequent conferences with each of the State offices and departmental officials and, in many cases, have rendered oral advisory opinions. We have participated in many conferences held by various departments in the settlement of problems presented. 20 biennial report of the attorney general [vol. Atlantic and North Carolina Railroad The General Assembly of 1943 passed an Act, Chapter 412, author-izing a loan by the State to the Atlantic and North Carolina Railroad Company of $200,000, to be used with $400,000 provided by the United States Navy in a rehabilitation program of the railroad. The enactment of this legislation has resulted in the execution of a contract between the Bureau of Yards and Docks of the United States Navy and the Atlantic and North Carolina Railroad Company and the Atlantic and East Carolina Railway Company, providing for the ex-penditure of the $600,000, together with substantial expenditure by the Atlantic and East Carolina Railway Company, chargeable to main-tenance for the complete overhauling and rehabilitation of the tracks and structures of this railroad. As a result, the railroad will replace the old worn out 50 lb. rail with 80 lb. or 90 lb. rails from Goldsboro to Morehead City. Extensive drain-age and ballasting projects have been carried on, and many of the bridges and structures rebuilt. The railroad, at the completion of the work, will be in excellent condition to handle the heavy traffic which it is now required to transport. The loan made by the State will be repaid in a period of five years by additional revenues received by the Atlantic and North Carolina Railroad Company from increased rentals paid by the operating com-pany. The operating company has agreed to pay an additional rent until these advances have been repaid, representing 5 per cent gross revenues in excess of $475,000. The advances made by the Navy Department are to be paid by the operating railway by percentage reduction on navy freight and cancellation of switching charges in the Cherry Point Base. At the end of the operations, the Atlantic and North Carolina Rail-road Company will, without cost to itself, have the completely rebuilt roadway and track. The rehabilitation program during the biennium has required con-tinuous legal assistance from this Office in the negotiation and prepara-tion of the numerous contracts and amended lease involved therein. With the increased rentals now being paid by the operating railroad, the Atlantic and North Carolina Railroad Company should, within a few years, pay off the indebtedness now due the State. Since the $200,000 loan, above referred to, has been made, the Atlantic and North Carolina Railroad Company has paid on its account the sum of $28,857.02. Indications are that the great base at Cherry Point will be permanent in character and insure a large volume of freight and passenger business to this railroad. During the biennium, under the authority of Chapter 443 of the Ses-sion Laws of 1943, the State Treasurer has taken up the outstanding mortgage bonds of the Atlantic and North Carolina Railroad Company, and the State is now the sole creditor of this company. 27j biennial report of the attorney general 21 Advisory Opinions to Local Officials During the biennnium, the Department has continued the long standing custom of furnishing advisory opinions to county, city and local officials upon the many questions of administrative lawr and procedure which have arisen in local government. The opinions of this office, while not legally binding on the agency requesting same, have been accepted as the method of settlement of numerous questions which have arisen. The efforts of this office to respond to numerous requests received throughout this State for this character of advice have required ex-tensive investigations of the law, and have constituted an important part of our work. An effort is always made to secure the requests for the opinions through the local legal advisers of the various local units and clear the opinion of the office through them. Available funds do not permit the publication in full of the numerous opinions rendered to local officials. Digests of these opinions, however, are published periodically in Popular Governvfient, the magazine of the Institute of Government of the University of North Carolina. Summaries of these opinions affecting municipalities are carried in a digest mimeographed by the North Carolina League of Municipalities. The press of the State has carried periodically digests of all opinions of general application. State Banking Commission As an ex officio member of the State Banking Commission, the At-torney General has sat with meetings of this Commission throughout the biennium. The law creating this Commission makes the Attorney General and the State Treasurer ex officio members thereof, and in-cludes five members appointed by the Governor. The Commission meets quarterly and upon special call. A re-port of its activities will be made through the Commissioner of Banks. Reference is made to the case of Arthur Pue v. Hood, Commissioner of Banks, 222 N. C. 310, in which our courts upheld the discretionary power of the Banking Commission to refuse the application for a charter by an industrial bank. Teachers' and State Employees' Retirement System in North Carolina As required by the Act, Chapter 25, Public Laws 1941, the Attorney General has continued to act as the legal adviser of the Board of Trustees. The operations of this Agency have required, at frequent intervals, the advice of this office. Thus far, no litigation has arisen respecting its activities. Unemployment Compensation Commission As requested by the Unemployment Compensation Commission, the Attorney Gneral's Office has furnished the legal opinions on important questions which have arisen in connection with the application of its 22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. laws during the biennium. The Commission has its own able legal staff, but from time to time, it has found it desirable to call upon this office for legal opinions, which we have always been glad to render. Social Security Laws During the biennium, this office has continued to act as the legal adviser for the State Board of Charities and Public Welfare. The ex-tensive operations of the State Board of Charities and Public Welfare and its intimate contact with the life of the people of the State have given rise to numerous, and sometimes complicated, legal questions. Numerous opinions have been furnished to the State Board and its departments, particularly the department concerned with child welfare in adoption proceedings throughout the State. This office has likewise been called upon to render legal opinions and offer advice to the State Commission for the Blind. Important questions of relationships with the Federal Government have arisen during the biennium as to the work carried on by the workshops for the blind, operated by the State Commission for the Blind. Satisfactory adjustments for the controversy relating to this matter have been worked out by conferences with Federal officials. State Department of Agriculture The State Department of Agriculture, in the performance of the many and varied duties assigned by law to it and to the Commissioner of Agriculture and to the State Board of Agriculture, has had frequent occasions to call upon this office for services and legal advice. Numerous office conferences have been held and on occasions when public hearings were necessary to be had, involving adoption of rules and regulations, and in the enforcement of regulatory laws as to seed, feeds, and fertilizers and inspection of foods, etc., members of the Staff of this office have been called upon to participate. The broad powers given to the Commissioner of Agriculture and the State Board of Agriculture and the expanding function performed by this important Department require frequently a great deal of legal advice and service in ways too numerous to be mentioned. In all of which, we have had the finest cooperation from the Commissioner of Agriculture and the officials of his Department. Summary of the Constitutional and Statutory Duties of the Attorney General To make a report upon all the activities of the Attorney General and this Department, it would be necessary to go into greater detail than is possible in this summary. References are herein given to provisions of the Constitution of North Carolina, and laws enacted in pursuance thereto, prescribing the duties and functions of the Attorney General. As legal adviser to the Council of State and as a member of the various boards and commissions hereinafter listed, the participation of the Attorney General in the consideration of matters coming before 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 meetings of the Council of State and such boards and commissions will be disclosed in the reports made therefrom. It is not required that they should be further detailed in this Report. The Constitution of North Carolina, Article III, Section 13, provides that the duties of the "Attorney General shall be prescribed by law." Pursuant to this section, the General Assembly has vested in the Department of the Attorney General the following powers, obligations, and duties: G. S. 114-2. "Duties.—It shall be the duty of the attorney general — "1. To defend all actions in the supreme court in which the state shall be interested, or is a party; and also when requested by the governor or either branch of the general assembly to appear for the state in any court or tribunal in any cause or matter, civil or criminal, in which the state may be a party or interested. "2. At the request of the governor, secretary of state, treasurer, auditor, corporation commissioners, insurance commissioner or superintendent of public instruction, he shall prosecute and defend all suits relating to matters connected with their departments. "3. To represent all state institutions, including the state's prison, whenever requested so to do by the official head of any such institution. "4. To consult with and advise the solicitors, when requested by them, in all matters pertaining to the duties of their office. "5. To give, when required, his opinion upon all questions of law submitted to him by the general assembly, or by either branch thereof, or by the governor, auditor, treasurer, or any other state officer. "6. To pay all moneys received for debts due or penalties to the state immediately after the receipt thereof into the treasury." In addition to these duties, the following ones are prescribed: To institute actions to recover taxes due under the Revenue Act (G. S. 105-239), and to approve all tax refunds made by the State (G. S. 105-407). To enforce the statutes relative to monopolies and trusts (G. S. 75-9 to 75-15). To institute actions to prevent ulta vires acts on the part of cor-porations, or to dissolve corporations for certain offenses (G. S. 55-47, 55-124,55-126). To institute quo warranto proceedings to oust persons who have usurped, who unlawfully hold, or who have forfeited public offices, and to begin actions to protect State lands (G. S. 1-515). To see that the solicitors prosecute violations of the act relating to the practice of medicine (G. S. 90-21). To enforce charitable trusts (G. S. 55-47). To prescribe the rules of practice for land registration under the Torrens Act (G. S. 43-3). To institute proceedings for the dissolution of fraternal insurance societies (G. S. 58-297 to 58-298). To appear on behalf of the court or other officers on appeal in contempt proceedings (G. S. 5-3). To investigate extradition cases, at the request of the Governor (G. S. 15-58). 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. To institute actions to enforce the rulings and orders of the Utilities Commission, and to represent said Commission in the enforcement of intrastate rates before the Interstate Commerce Commission and in federal or state courts (G. S. 62-63 and 62-6). To give advice to the State Board of Elections as to the form of ballots (G. S. 163-141). To institute action against persons, firms or corporations who violate the terms of the act regulating the quality of agricultural seeds. This duty may be delegated to the attorney of the county or city in which the violation occurred (G. S. 106-284). To approve deeds and grants to the State of property given to, or purchased by, it for park purposes (G. S. 113-34). To collect from inmates of state institutions the cost of their upkeep, provided they are able to pay (G. S. 143-124). To approve the grant of easements by state institutions to public-service corporations (G. S. 143-151). To act as legal adviser and institute necessary condemnation pro-ceedings for the North Carolina Cape Hatteras Seashore Commission (Ch. 257, P. L. 1939). To enforce rules and regulations adopted by the Commissioner of Labor relating to safety devices (G. S. 95-13). To witness the burning of cancelled State bonds and coupons (G. S. 142-13). To collect the delinquent taxes due the State Board of Health (G. S. 130-13). The Attorney General is a member of, or adviser to, the following boards, councils, and commissions: Legal adviser to the Executive Department (Const., Art. Ill, S. 14); member of the State Board of Assessments (G. S. 105-273), of Advisory Board of Paroles (G. S. 148- 50), of State Banking Commission (G. S. 53-92), of Board of Public Buildings and Grounds (G. S. 129-2), of Municipal Board of Control (G. S. 160-195), of the Eugenics Board (G. S. 35-40); and the Board of Advisers of the World War Veterans Loan Fund (G. S. 143-71). Appeals in Criminal Cases In Exhibit II will be found a list of criminal cases which were argued by the Attorney General and his Assistants before the Supreme Court for the Fall Term 1942, Spring Term 1943, Fall Term 1943, and Spring Term 1944. Summary of Important Civil and Criminal Cases The following is a brief statement of matters involved in civil and criminal cases of more than usual interest and importance. Civil Cases Dan W. McLean v. Durham County Board of Elections, 222 N. C. 6 The plaintiff filed a petition in the Superior Court of Durham County for a mandamus to require the Durham County Board of Elections to print petitioner's name on the official ballot for the November 1942, 27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 election as the Republican candidate for Clerk of the Superior Court of Durham County. The nomination was made by the convention method instead of by participation in the primary election. A demurrer was filed to the petition in the Superior Court and when the cause came on to be heard on the demurrer, an order was entered sustaining the demurrer and denying the writ of mandamus. , The plaintiff ex-cepted and appealed to the Supreme Court. The case was heard in the Supreme Court and the judgment of the lower court was affirmed. Arthur Pue, et al. v. Gurney P. Hood, Commissioner of Banks, et al., 222 N. C. 310 The plaintiffs filed with the Secretary of State of North Carolina a proposed certificate of incorporation of an industrial bank. The Com-misisoner of Banks, after holding a public meeting, found certain facts find concluded that in his opinion the public convenience and advantage (vould not be promoted by the establishment of the proposed bank. The report was submitted to the State Banking Commission which directed the finding of additional facts and approved his conclusion. Thereafter, his conclusion was certified to the Secretary of State who declined to issue the proposed charter. The plaintiffs then instituted an action in the Superior Court of Guilford County to require the issuance of a charter to the proposed bank. The case was removed to Wake County and the defendants filed a demurrer to the complaint, on the ground that the complaint did not state facts sufficient to con-stitute a cause of action. When the cause came on to be heard in the Superior Court of Wake County, the demurrer was sustained and judgment entered dismissing the action. Plaintiff excepted and ap-pealed to the Supreme Court and, upon the matter being heard in the Supreme Court, the judgment of the court below was affirmed. J. M. Hunsucker, et al. v. Stanley Winhorne, et al., Constituting the Municipal Board of Control of North Carolina, 223 N. C. 650 The Municipal Board of Control of North Carolina, upon petition being filed on January 25, 1943, entered an order changing the name of the Town of Hemp to that of Robbins. The plaintiffs, who were citizens and taxpayers of the municipality, instituted an action to re-strain the execution of the order changing the name of the Town of Hemp to Robbins. The defendants filed a demurrer to the complaint and, upon the hearing in the Superior Court of Wake County, the demurrer of the defendants was sustained. The temporary restraining order theretofore granted was dissolved and the action dismissed. The plaintiffs appealed to the Supreme Court of North Carolina. The Supreme Court, in affirming the judgment of the court below, held that if the Municipal Board of Control should err in its findings, the error may be corrected by the Superior Court upon a writ of certiorari but there is no provision in the statute for an appeal. 26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. D. M. Warren, et al. v. A. J. Maxwell, et al., 223 N. C. 604 The plaintiffs, who constitute the Board of County Commissioners Board of Equalization and Review and Tax Supervisors of Chowan County, sought a peremptory mandamus to require the receivers of the Norfolk Southern Railroad Company to list with the State Board of Assessment for the year 1941, as a part of its track, roadbed and right of way, that part of its road running from Edenton, in Chowan County, to the Virginia state line, and to compel the State Board of Assessment to include the same in determining the pro rata part of the total valuation of the railroad in North Carolina to be apportioned to Chowan County for that year. In the Superior Court of Wake County, the defendants demurred ore tenus to the complaint on the ground that it failed to state a cause of action. The trial judge reserved his ruling on the demurrer and heard the matter on its merits. At the conclusion of all the evidence, upon motion of the defendants, judgment was entered nonsuiting the plaintiffs. Upon appeal to the Supreme Court, the judgment of the lower court was affirmed. State of North Carolina ex rel. North Carolina Utilities Commission v. Atlantic Greyhound Corporation, et al., 224 N. C. 293 The North Carolina Utilities Commission, in amending Rule No. 22 of its rules and regulations for the operation of union bus stations, required carriers operating from a common station where tickets are sold to a common destination to honor tickets of one another between said points. After the entry of the regulation making this change, the defendants, who are common carriers by motor vehicles engaged in the transportation of passengers within the State of North Carolina, filed with the Utilities Commission a special appearance and moved to vacate the amendment to Rule No. 22. The Utilities Commission denied the relief sought and the defendants appealed to the Superior Court of Wake County. In the Superior Court, the Utilities Commis-sion entered a motion to dismiss the appeal on the ground, among others, that the amendment to the rule objected to did not afford grounds and basis for an appeal by the defendants. The trial judge allowed the motion and judgment was entered dismissing the appeal. Thereupon, the defendants appealed to the Supreme Court. The Supreme Court, in affirming the judgment of the court below, held that no procedure for appeals to the courts from rules and regulations of the Utilities Commission having been prescribed by statute, the validity thereof could not be challenged by appeal. State of North Carolina ex rel., Utilities Commission v. Atlantic Greyhound Corporation, et al. The North Carolina Utilities Commission entered a general order or regulation requiring that the destination and connections of all buses operating out of union station be announced. The defendants, who are carriers and would be affected by the order or regulation, appeared before the Utilities Commission and moved that the order 27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 or regulation be vacated. Upon the refusal of the Utilities Commission to vacate the order or regulation, the defendants appealed to the Superior Court of Wake County. The Utilities Commission made a motion in the Superior Court of Wake County to dismiss the appeal on the ground that the promulgation of this rule or order did not afford ground and basis for an appeal by the defendant. The court allowed the motion and entered judgment dismissing the appeal. The defend-ants gave notice of appeal to the Supreme Court but have not, as yet, perfected their appeal. State of North Carolina ex rel., Utilities Commission v. Atlantic Coast Line Railroad Company, 224 N C. 283 The North Carolina Utilities Commission entered an order holding that the pulpwood rates contained in the Atlantic Coast Line Railroad Company's tariff schedule, to the extent that they exceeded the maxi-mum level permitted under an outstanding order of the Commission dated June 12, 1939, were unlawful and that the continued refusal to obey the previous order of the Commission rendered the Railroad Company liable to an action for the penalty prescribed by the statute. The defendant excepted to this order on the ground that the Utilities Commision was without authority to issue the order for the reason that the Commission had not proceeded in accordance with the statute, and that the tariff filed by the defendant was valid in every respect. The defendant's exceptions were overruled and, upon appeal to the Superior Court of Wake County, the ruling of the Utilities Commis-sion w^as in all respects affirmed. Upon appeal to the Supreme Court of North Carolina, the judgment of the Superior Court was upheld. Industrial Commission Cases Gilmore v. Board of Education This was an action instituted by the widow and children of Dean Gilmore, deceased, against the Hoke County Board of Education and its insurance carrier and the State School Commission. Gilmore suf-fered an injury to his right leg in a fall sustained while washing windows in the new gymnasium of the Hoke County High School. He later partially recovered from the injury but died before being able to return to work. Upon a hearing before the Commissioner, compensation was awarded against the Hoke County Board of Educa-tion and its insurance carrier. The Commissioner held that there was no liability as against the State School Commission. The same result was reached by the Full Commission and upon appeal to the Superior Court of Hoke County, the findings of fact and conclusions of law of the Commission were affirmed. The defendants appealed to the Supreme Court of North Carolina. The Supreme Court, in reversing the judgment of the court below, held that upon the evidence in the record, the death of Gilmore did not result proximately from the accident and that compensation was not allowable. Gilmore v. Board of Education, 222 N. C. 358. 28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Callihan v. Board of Education This was an action brought before the Industrial Commission against the Board of Education of Robeson County, the State School Commis-sion, et al., by the widow and children of William B. Callihan, deceased, for compensation under the provisions of the Workmen's Compensation Act. Callihan was a teacher of vocational agriculture in the Robeson County schools and was killed in an automobile accident on a public highway en route from St. Pauls to Lumberton to attend a monthly meeting in connection with his vocational work. The Commission held that the Robeson County Board of Education was the sole em-ployer and made an award against the County Board of Education and its insurance carrier. The Robeson County Board of Education and its insurance carrier appealed to the Superior Court, where the award was sustained and an appeal was taken to the Supreme Court. In the Supreme Court the judgment of the court below was sustained. Callihan v. Board of Education, 222 N. C. 381. J. J. Johnson v. North Carolina Department of Highway Patrol, Department of Revenue This was an action brought before the Industrial Commission by J. J. Johnson, a member of the North Carolina State Highway Patrol, on account of injuries sustained by jumping or stepping from the porch of his home in Alexander County. At the time of the injury, plaintiff had gone to his home for the purpose of eating his lunch. As he started to leave his house, he twisted his ankle by either jumping from or stepping from his porch instead of using the steps of the porch. The hearing Commissioner denied compensation and his action was ap-proved upon appeal to the Full Commission. The plaintiff thereupon appealed to the Superior Court of Alexander County and the trial judge entered judgment affirming the award of the Industrial Com^ mission, denying compensation to the plaintiff. No appeal was taken from this judgment. Kenneth M. Jones, Administrator of the Estate of Hollis Snipes, Deceased v. University of North Carolina This was an action brought by the administrator of the estate of Hollis Snipes, deceased, before the Industrial Commission, seeking to recover compensation under the provisions of the Workmen's Compensation Act for the death of Hollis Snipes, an employee of the University of North Carolina. Snipes sustained an injury by an accident arising out of and in the course of his employment when he was cut on the back of the left hand with a scythe. After several days had intervened, he was taken to a hospital in Durham. On the tenth day in the hospital, after he had almost entirely recovered, he developed pneumonia and within a short time died. Upon a hearing before the Commissioner, it was found that Snipes died from pneumonia and that the pneumonia was in no way related to the injury by accident to his hand. Claim for compensation was denied and the defendant did not appeal. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29 Jeannett A. Noel v. Edson B. Olds, et al. (Ackland Will Case) A statement of this case was contained in the last Biennial Report, apearing on pages 25, 26, and 27. At the time this Report was filed, the case was pending on appeal in the United States District Court of the District of Columbia. In this case, the next of kin of William Hayes Ackland were seeking to be declared entitled to receive the residuary trust created by Mr. Ackland, amounting to approximately $1,400,000, which had been willed to Duke University to create an art museum and memorial to the testator. Upon refusal of Duke University to accept the gift, the University of North Carolina intervened and asserted the right to receive the gift under the cy pres doctrine. Rollins College also claimed the benefit of the fund under the same doctrine. Former Governor O. Max Gardner was first to present this matter to the Board of Trustees of the University of North Carolina, and proposed to handle the litigation for the State without any compensa-tion for his services. The Attorney General has appeared in the litigation with Governor Gardner and his Washington, D. C. law firm. The case was ably argued by Governor Gardner for the University of North Carolina in the Circuit Court of Appeals of the District of Columbia, and resulted in an opinion written by Justice Justin Miller, in which the cy pres doctrine was upheld and declared ap-plicable to the case. The motion of the University of North Carolina to intervene was allowed and the case remanded to the District Judge for further procedure in accordance with the opinion. Justice Bailey, the District Judge, has entered an order asking for recommendations from the Trustees as to what institution of learning should be the main beneficiary of the gift from Mr. Ackland, and this matter is now pending in the District Court. W. F. Logan v. J. R. Cline, Sherijf, Edwin Gill, Commissioner of Revenue of North Carolina, and Charles M. Johnson, Treasurer This was an action instituted in the Superior Court of Cleveland County to recover privilege taxes assessed against plaintiff under the authority of Section 150 of the Revenue Act, and paid under protest. Judgment was rendered for the defendants and no appeal was taken by the plaintiff. State V. Thomas M. Stanton This was a prosecution in the Superior Court of Wake County commenced at the instance of the Commissioner of Revenue and based upon the defendant's violation of the provisions of Section 336 of the Revenue Act in failing to file his income tax return for the year 1940. After a true bill of indictment had been found by the Grand Jury, the defendant paid to the Commissioner of Revenue the sum of $686.89, representing all income tax, penalty and interest due for the years 1937-1940, both inclusive. At the trial, the defendant pleaded nolo contendere, whereupon, upon the recommendation of 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. the Commissioner, the Court continued prayer for judgment for five years on condition that the defendant annually file income tax returns as provided by law, and pay the costs. George Kostakes, Trading as Kostakes Novelty Company v. Edwin Gill, Commissioner of Revenue and G. Mack Riley, Sheriff of Mecklenburg County [n this action in the Superior Court of Mecklenburg County, the plaintiff sought an injunction against the defendants for the purpose of restraining them from proceeding with a tax execution agamst plaintiff's property. The Court dissolved the restraining order, and the case was settled by nonsuit upon the execution by the plaintiff of a note and mortgage for the tax indebtedness. G. H. Valentine, Executor of the Estate of Charles Treadwell Trask v. Edwin Gill, Commissioner of Revenue This was a controversy without action to determine whether the plaintiff was liable for inheritance tax assessed by the defendant and paid by the plaintiff under protest. The action involved a con-struction of Section 12 of the Revenue Act. Judgment was rendered in the Superior Court for the defendant. This judgment was affirn;ied on appeal to the Supreme Court. See 223 N. C. 396. Asheville Livestock Yards v. Edwin Gill, Commisioner of Revenue (2 cases) These were actions brought in the Superior Court of Buncombe County to recover privilege taxes assessed by defendant under Section 115 of the Revenue Act, and paid by plaintiff under protest. Judgment was rendered for plaintiff, and the defendant did not appeal. Leonard Safrit v. Ronald Hocutt, Director, Highway Safety Division This was a petition for the restoration of petitioner's driver's license. The matter was heard in the Superior Court of Carteret County. Judgment was rendered for the respondent, and no appeal was taken. C. B. Brown v. Edwin Gill, Commissioner of Revenue This was an action instituted in the Superior Court of Onslow County for the recovery of sales tax paid under protest to the de-fendant by the plaintiff. After a thorough investigation, the de-fendant consented to a judgment for plaintiff. James Cooper v. T. Boddie Ward, Commissioner of Motor Vehicles This was an action instituted in the Superior Court of Wake County by which the plaintiff sought a mandamus to compel defendant to return his driver's license which had been taken up by the Superior Court of Forsyth County. Judgment was rendered for the defendant 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 in the Superior Court. On appeal, the Supreme Court affirmed the judgment of the lower court, dismissing this action, but giving plaintiff the requested relief by treating the action as a petition for a writ of certiorari to the Superior Court of Forsyth County, and granting the writ and correcting the judgment of the Superior Court of Forsyth Coimty. See 224 N. C. 99 and 224 N. C. 100. State V. Nick D. Kaperonis This was a prosecution commenced in the Recorder's Court of the City of Charlotte at the instance of the Commissioner of Revenue against the defendant for a violation of Section 422 of the Revenue Act in the alleged willful filing of false sales tax returns. Upon the payment to the State, or a security for payment to the State, of over 316,000 in sales tax, penalties and interest, the Court accepted the defendant's plea of nolo contendere and continued prayer for judg-ment indefinitely. North Carolina Mortgage Corporation v. A. J. Maxwell, Commissioner of Revenue (tivo cases) The plaintiff submitted to a nonsuit in these actions in the Superior Court of Wake County, which involved franchise taxes on corporations formed to liquidate mortgages or mortgaged property taken in fore-closure. Burroughs Adding Machine Company v. Edwin Gill, Commissioner of Revenue This is an action commenced in the Superior Court of Wake County by the plaintiff, a foreign corporation, for the recovery of income and franchise taxes based on the alleged invalidity of the allocation formula prescribed in Sections 210 and 311 of the Revenue Act for the determination of the portion of plaintiff's capital stock, surplus, and undivided profits, and the portion of plaintiff's income, to be taxed by North Carolina. Answer has been filed and this action is now pending. General Motors Corporation v. Doughton (two cases) These actions were instituted in the Superior Court of Wake County in 1926 for the recovery of privilege license- taxes for the sale of auto-mobiles levied by Section 72 of the Public Laws of 1921 and Section 78 of the Public Laws of 1923 and 1925, and paid by the plaintiff under protest. The actions have never been disposed of and are still pending. State of North Carolina, in the Relation of the Commissioner of Revenue v. The American Tobacco Company This action in the Superior Court of Wake County has been pend-ing since 1940 and involves the question whether State income and franchise taxes may be measured, in part, by imported Turkish 32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Tobacco stored in customs warehouses in this State and awaiting manufacture. The Company contends that the imports clause of the federal constitution forbids the use, as a measure, of imported property in the original packages and still in customs custody. Criminal Cases State V. Howard, 222 N. C. 291 The defendant was indicted in the Superior Court of Wake County on two separate bills of indictment, one bill charging him with em-bezzling property of the State of North Carolina while an officer and agent of the State and cashier in the North Carolina Department of Revenue, and the other bill charging him with aiding and abetting one C. W. Snead, another officer and employee of the State, in embezzling property of the State. The defendant was convicted on both charges and appealed to the Supreme Court. The Supreme Court found no error in connection with the trial in the lower court. State V. Ward, 222 N. C. 316 The defendant, Robert L. Ward, Jr., was tried in the Superior Court of Wake County, North Carolina, on three bills of indictment charging embezzlement and aiding and abetting in the crime of em-bezzlement. The three cases were by consent consolidated for the purpose of trial and each bill considered as a separate count. From 1938 to 1941 the defendant was auditor and Chief of the Division of Accounts and Records in the Department of Revenue of the State of North Carolina. There was a verdict of guilty as to each count on which the defendant was tried and from the judgment pronounced on the verdict of the jury, the defendant appealed to the Supreme Court. After a careful examination of all the exceptions entered by the defendant in the lower court, the Supreme Court found no error of sufficient merit to justify a new trial. State V. Pelley, 222 N. C. 684 The defendant, William Dudley Pelley, was convicted in the year 1935 in the Superior Court of Buncombe County on the charge of a violation of the Capital Issues Law of the State of North Carolina. He was given a suspended sentence and thereafter the suspended sentence was put into effect and the defendant appealed to the Supreme Court of North Carolina, where the action of the lower court was affirmed — State v. Pelley, 221 N. C. 487. Pending his ap-peal to the Supreme Court of North Carolina, the defendant was released on a bail bond in the sum of $10,000.00 executed by the defendant, as principal, and Carrie Thrash Dorsell and George B. Fisher, as sureties. The bond was conditioned upon the appearance of the defendant at the next term of the Superior Court of Buncombe County to be held after the judgment of the Supreme Court of North Carolina was handed down and then and there to abide judgment 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33 of the court. The defendant failed to appear as required by the bond and was called and failed to answer. A set fas was issued and the sureties filed answer, contending that they had been relieved from liability on the bond, due to the fact that the defendant had been taken into custody by the United States Marshal for the Southern District of Indiana for removal to the United States District Court of the District of Columbia, upon an indictment charging certain federal offenses. Judgment absolute on the bond was entered in the court below and the sureties on the bond appealed to the Supreme Court assigning error. The judgment of the court below was af-firmed by the Supreme Court. State V. Lippard, 223 N. C. 167 The defendants, Carl Lippard and Paul Lippard, were indicted in the Superior Court of Mecklenburg County on the charge of a conspiracy to violate the laws of the State of North Carolina relating to intoxicating liquor. In the court below the defendants pleaded former jeopardy, contending that they had theretofore been tried for the offenses which were to be used as a basis for the establishment of the crime of conspiracy. The court below refused to allow the defendants' plea for dismissal based upon former convictions and double jeopardy and the defendants, after being convicted by the jury, excepted and appealed to the Supreme Court. The Supreme Court held that the charge of conspiracy to violate the law and the charge of the consummation of the conspiracy being an actual violation of the law are charges of separate offenses and that a conviction of one cannot be successfully pleaded as former jeopardy on an indict-ment for the other. No error was found in the trial below. State V. Williams and Hendrix, 224 N. C. 183 A series of North Carolina decisions hold that a divorce decree obtained from a North Carolina defendant in a State in which only the plaintiff is domiciled and in which the defendant is not personally served with process and makes no appearance will be treated as void in North Carolina. It was thought that these decisions were sanc-tioned by the decision of the United States Supreme Court in Haddock v. Haddock, 201 U. S. 562, but the constitutionality of the North Carolina rule was challenged in State v. Williams and Hendrix. The defendants, convicted of bigamous cohabitation in Caldwell County, had obtained in Nevada divorces from their North Carolina spouses on service by publication, had married, and had lived to-gether in North Carolina. Their contention that the Nevada divorce decrees were entitled to full faith and credit under Article IV, Sec-tion 1, of the United States Constitution, was rejected by the North Carolina Supreme Court in State v. Williams and Hendrix, 220 N. C. 445. A writ of certiorari was granted by the United States Supreme Court and the case was heard by that Court at the October Term, 1942. The United States Supreme Court overruled the decision of 34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Haddock v. Haddock, 201 U. S. 562, reversed the conviction of the defendants, and remanded the case for further proceedings, 317 U. S. 287. The Supreme Court of North Carolina remanded the case to the Superior Court of Caldwell County for a new trial, 223 N. C. 609. In this prosecution, the State proceeded upon the theory that the plaintiffs in the divorce actions had acquired no bona fide resi-dences in Nevada. The jury accepted the State's contentions and again returned a verdict of guilty. The North Carolina Supreme Court affirmed the conviction. A writ of certiorari was granted by the United States Supreme Court and the case will be heard by that Court at the October Term, 1944. State V. Gordon, 224 N. C. 304 The defendant, John Gordon, was tried in the Superior Court of Wake County on charges of violating certain provisions of the prohibition law. Whiskey had been delivered to a motor carrier in Maryland for delivery in South Carolina. The truck which was carrying the whiskey was found in the possession of the defendant with an automobile backed up to the rear thereof while the defendant was apparently in the act of transferring cases of whiskey from the truck to the car. In the trial, the judge instructed the jury that it was immateral that the whiskey was an interstate shipment if they (the jury) should find beyond a reasonable doubt that the defendant took possession of it and had it in his possession for the purpose of sale in this county. The jury returned a verdict of guilty and the defendant appealed to the Supreme Court. The Supreme Court af-firmed the conviction of the defendant, saying that a cargo of liquor started on its way as an interstate shipment may be diverted to unlawful purposes and the nature of the shipment does not license the one in possession to dispose of it at v/ill in this State. State V. Hall, 224 N. C. 314 The defendant, Bert Hall, was charged in the Recorder's Court of Cumberland County with unlawful possession and transportation of 323 cases of intoxicating liquor. To this charge he pleaded guilty, and judgment was thereupon rendered imposing sentence upon him, and also in accordance with the North Carolina statute, decreeing confiscation and forfeiture of the liquor. From this judgment there was no appeal. Subsequent to this conviction, Roadway Express In-corporated filed a petition and interplea in the cause in the Recorder's Court, alleging title to the 323 cases of liquor as bailee, and asked that immediate possession thereof be surrendered to it. The inter-pleader further alleged that it had no knowledge of any unlawful acts on the part of Hall; that Hall was not its employee; that it did not authorize Hall to maintain possession of the liquor except for the purpose of operating the truck and transporting the whiskey from Maryland to South Carolina, and that proper shipping papers were issued at the time of making the shipment. Judgment was entered in the Recorder's Court overruling the motion and interplea 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 of Roadway Express Incorporated, and confirming the disposition of the liquor as ordered in the original judgment in the criminal action. The petitioner appealed to the Superior Court.* It was thereupon ordered that the judgment of the Recorder be overruled and that Roadway Express Incorporated, as bailee, was entitled to the immediate possession of the 323 cases of whiskey. To this order the State and the Cumberland County Alcoholic Beverage Control Board excepted and appealed. The Supreme Court reversed the judgment of the Superior Court, holding that where one who was in possession of seized liquor at the time he was arrested for unlawful acts with respect thereto pleads guilty to or is convicted of charges of unlawful possession and unlawful transportation of this liquor and thereupon personal judgment is rendered against him, the provisions of G. S. 18-6 are mandatory that the judgment also order the confiscation and forfeiture of the liquor so unlawfully possessed and transported. The court held further that when a cargo of in-toxicating liquor, though started on its way as an interstate shipment, is diverted to unlawful purposes in violation of the law of the state in which it has come to rest, the initial character of the shipment does not clothe those in possession with immunity from prescribed penalties or oust the jurisdiction of the state courts, either as to person or property. OPINIONS TO GOVERNOR Double Office Holding; Clerk to Rationing Board and Notary Public 14 August, 1942. I have your letter of August 11, 1942, in which you inquire whether Mr. Lew Williams, who states that he is an "Assistant" to the Forsyth Rationing and War Price Board, would be disqualified to hold the office of Notary Public by reason of the fact that he is holding a Federal office. I am informed by the Office of Price Administration in Raleigh that technically there is no such position as "Assistant" to a ration-ing board. I assume, therefore, that Mr. Williams is a clerk to the board. Clerks to rationing boards do not have to exercise independent or official discretion with reference to matters that come before them. They act under instructions from the board and their acts are ratified by the board. Their work is primarily clerical in nature. The test of whether a position constitutes a public office within the meaning of our constitutional prohibition against double office hold-ing, as stated in State v. Smith, 145 N. C. 476, is whether the in-dividual involved is delegated some of the sovereign functions of the government. Where a person is merely an employee and his duties are clerical only, I do not think he would be considered a public officer. I, therefore, advise that there is no constitutional obstacle to the appointment of clerks and other clerical employees of a ration-ing board to the position of Notary Public. Officers; Dual Office Holding; Notary Public—Member of Home Guard 22 September, 1942. The constitutional provision against dual office holding, Article XIV, Section 7, excepts officers in the militia. Therefore, an officer in the Home Guard, which is a part of the State militia, would not be prevented thereby from at the same time acting as a Notary Public or holding any other office. I am enclosing you copy of the opinion rendered by me to Mr. Leonadas Hux on the subject of double office holding as affecting commissioned officers in the United States Army, Navy and Marine Corps. Inland Waterway 15 October, 1942. . I have your letter of October 13, enclosing copy of a letter from Colonel W. S. Moore, District Engineer, Wilmington, North Carolina, requesting the. State to provide a tract of land containing about 110 acres, located in Brunswick County about nine miles west of South-port, found to be necessary by the United States engineers in order [Vol. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37 to remove shoals which might interfere with the movement of oil in barges from Florida to northern points. He advises that an enlargement of the waterway from a channel of 8 feet deep and 75 feet wide to a channel of 12 feet deep and 90 feet wide was authorized by the River and Harbor Act of August 26, 1937, in which it was provided that local interests should furnish free of cost to the United States necessary rights-of-way and spoil disposal areas for new work and subsequent maintenance. You are requested to advise whether or not the State may be expected to furnish to the United States, without cost, the additional right-of-way now re-quired. Chapter 2 of the Public Laws of 1931, entitled "An Act to Provide a Right-of-way for the United States Government for the Inland Waterway from the Cape Fear River at Southport to the North Carolina-South Carolina Line," is the only authority which the State has to provide the right-of-way in this territory. This Act recites the Act of Congress approved July 3, 1930, authorizing the construc-tion of an Intracoastal Waterway from the Cape Fear River at South-port to and beyond the North Carolina-South Carolina State Line, in accordance with a report submitted to the 71st Congress, First Session, providing for a right-of-way of specified width, depending upon the elevation of the land above mean low water. The preamble of this Act recited that the State desired to accomplish the condition imposed upon local interests and furnish the right-of-way for the waterway as provided in the report of the engineers. No action has been taken by our Legislature since the Act of Con-gress of August 26, 1937, and I am unable to find any authority given by the Legislature of this State to provide any additional right-of-way for the United States, which is found to be necessary by reason of conditions referred to in the letter from Colonel W. S. Moore. The appropriation provided in Chapter 2 of the Public Laws of 1931 has been completely expended, and, in addition thereto, some funds were provided from the Contingency and Emergency Fund. I, therefore, regret to state that I am unable to advise you of any authority which would permit the State to provide the Federal Government with the additional land which is now needed. Notaries; Eligibility for Appointment; Residence Requirements 21 October, 1942. You inquire as to whether a person who resides in one county in the State is entitled to receive a commission as a notary public in another county in the State in which such person is temporarily employed. Section 3172 of Michie's North Carolina Code of 1939 Annotated provides that the Governor may, from time to time, at his discretion, appoint one or more fit persons in every county to act as notaries public and shall issue to each a commission. Section 3173 provides that upon exhibiting their commission to the Clerk of the Superior Court in the county in which they are to 38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. act, the notaries shall be duly qualified by taking before said Clerk an oath of office and the oaths prescribed for officers. It further provides that a certificate of the commission shall be deposited with the Clerk and filed among the records and that the Clerk shall note on his minutes the qualifications of the notary public. Section 3176 provides that notaries have full power and authority to perform the functions of their office in any and all counties of the State and full faith and credit shall be given to any of their official acts wheresoever the same shall be made and done. The Supreme Court of North Carolina, in the case of Harris v. Watson, 201 N. C. 661, holds that the office of notary public is a public office within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. Article 6, Section 7, of the Constitution of North Carolina, pro-vides that every voter in North Carolina, except as in Article 6 dis-qualified, shall be eligible to public office. Section 25 of the Election Laws of North Carolina, being Section 5937 of Michie's North Carolina Code of 1939 Annotated, provides that, subject to certain exceptions contained in Section 5936, every person who has been naturalized and who shall have resided in the State of North Carolina for one year and in the precinct, ward, or other election district in which he offers to vote four months next preceding the election shall, if otherwise qualified, be a qualified elector in the precinct or ward or township in which he resides. Although it is my thought that it might be advisable to confine the appointment of notaries public to the county in which they actually reside, I am unable to find anything in the statutes which, to my mind, would prevent the Governor of North Carolina from appointing a person a notary public in a county in which such person temporarily resides and intends to act, although the person's actual residence is in another county in the State. Purchase and Contract; Sale of Typew^riters Belonging to State 8 December, 1942. I acknowledge receipt of your letter of the 7th inst., in which you state that the Army and Navy are in immediate need of six hundred thousand typewriters, and that the typewriter manufacturers have converted their factories to the production of other more es-sential war materials, necessitating the War Production Board de-manding that typewriters be supplied by all business firms. State, county and local governments from those that are now in their possession. You inquire whether or not the State purchasing agency may sell to the Federal Government without competitive bidding when the funds so received are placed in a sinking fund, with the under-standing that when the war is over, additional money would be added in order that new typewriters may be purchased. While it is my understanding that the Department of Purchase and Contract requires competitive bidding for the sale of any State 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39 owned property, I find no statute specifically requiring that com-petitive bidding be had before typewriters and other articles of personal property can be sold. I am of the opinion that under the present national emergency, the State may sell to the Federal Gov-ernment typewriters and similar articles of personal property without competitive bidding. Criminal Law; Control and Treatment of Venereal Diseases; Maximum Sentence for Failure to Take Treatments 26 February, 1943. On yesterday Associate Justice Barnhill, of the Supreme Court of North Carolina, heard a petition for a writ of habeas corpus filed by one Ruby Ingle, who was tried in the police court of the City of Asheville on the 11th day of January on a charge that she wilfully failed, neglected and refused to take treatment for venereal disease, as provided by Section 3, Chapter 206, of the Public Laws of 1919. She was given a sentence of eight months in the common jail of Buncombe County to be worked under the supervision of the State Highway and Public Works Commission and was committed to the State Prison on January 18, 1943. At the time of the hearing, she had served over thirty days of her sentence. Section 7198 of Michie's North Carolina Code of 1939 Annotated, which is Section 8, of Chapter 206, of the Public Laws of 1919, provides : "Any person who shall violate any of the provisions of this part of this article or any lawful rule or regulation made by the North Carolina state board of health pursuant to the authority herein granted, or who shall fail or refuse to obey any lawful order issued by any state, county, or municipal health officer, pursuant to the authority granted in this article, shall be deemed guilty of a mis-demeanor, and shall be punished by a fine of not less than twenty-five dollars, nor more than fifty dollars, or by imprisonment for not more than thirty days." Justice Barnhill, on +he showing that the prisoner had served more than thirty days, granted the writ of habeas corpus and ordered the prison authorities of the State of North Carolina to release and discharge the prisoner. I am informed that there are several other women prisoners now confined in the Women's Division of the State's Prison who have been sentenced to be confined for a longer period than thirty, days solely for failure to take the treatment for venereal disease. Some of these prisoners are in need of further treatment and some, I am informed, do not need further treatment for venereal disease. Under the provisions of Section 7198, above referred to, the maximum sentence which may be imposed upon a defendant is thirty days imprisonment and those persons who are now in the Women's Division of the State Prison and who have served more than thirty days on a sentence pronounced under the provisions of this Section are being illegally detained, unless they require further treatment for venereal disease. 40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. Under the provisions of Section 3, of Chapter 257, of the Public Laws of 1935, which appears in Michie's North Carolina Code of 1939 Annotated as Section 7716, the State Highway and Public Works Commission is authorized to provide within the bounds ol Central Prison at Raleigh, or elsewhere in the State, suitable quarters for women prisoners and arrange for work suitable to their capacity, and the several courts of the State are authorized to assign women convicted of offenses, whether felonies or misdemeanors, to such quarters so provided, but no woman prisoner is to be assigned to work under the supervision of the State Highway and Public Works Commission whose term of imprisonment is less than six months or who is under eighteen years of age. Therefore, the women prisoners who were sentenced under the provisions of Section 7198 of Michie's Code should never have been assigned to work under the supervision of the State Highway and Public Works Commission, but should have been retained in the common jail of the county in which they were tried. The prisoners who have been sentenced under the provisions of Section 7198, who need further treatment but who have served a longer period than thirty days, should not be discharged but should be held for further treatment. It is my thought that these prisoners should be returned to the counties from which they were sentenced so that the counties may hold them for further treatment. Hospitals for the Insane; Convicts Becoming Insane; Commitment TO State Hospital; Release or Transfer 24 March, 1943. I have checked the file you sent me relative to the case of one Rex Griggs who, while serving a sentence of from four to seven years at State's Prison, was admitted to the Criminal Insane Depart-ment of the State Hospital at Raleigh. It seems that Griggs' sentence expired on September 30, .1942, and that his mother desires that he be transferred to the State Hospital at Morganton. On December 2, 1942, in reply to an in-quiry from Dr. J. F. Owen, Superintendent of State Hospital at Raleigh, I expressed the opinion that Dr. Owen w^ould not be author-ized to order the transfer of Griggs to the State Hospital at Mor-ganton. I am enclosing herewith a copy of my letter to Dr. Owen. Upon receipt of your file, I rechecked the statutes relating to the various hospitals for the insane and I find that, under the pro-visions of Section 6163 of Michie's North Carolina Code of 1939 An-notated, it is provided: "The Board of Directors are authorized to make such rules and regulations as in their discretion may- seem best for the transfer of patients from one state hospital for the insane to another state hospital for the insane; and they are further authorized to transfer from one hospital for the insane to another hospital for the insane any funds appropriated for permanent improvement or maintenance if in their discretion and judgment it may become advisable or necessary." 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 41 It will be noted that at the time of the enactment of this 'par-ticular Section one Board of Directors had charge of both the State Hospital at Raleigh and the State Hospital at Morganton. There-after, the law was changed so as to provide for a separate board for each institution and Section 6163 might have been, by implication at least, rendered ineffective. However, this particular statute was carried forward in the new Code and as the last General Assembly provided for a central board for the various State Hospitals, this board might, under the authority contained in Section 6163, provide for the transfer of patients from one hospital to another, provided the persons to be transferred would not be considered in the class of the dangerous insane. Of course, I am very much in sympathy with Mrs. Griggs in trying to do what she thinks is the best for the welfare of her son. Uniform Drivers License Act; Suspension, Revocation and Restoration of License April 9, 1943. You inquire as to the authority of the Governor to reinstate or issue a new license to a person whose driver's or chauffeur's license has been revoked by the Motor Vehicle Department after conviction in court has become final for operating a motor vehicle upon the streets and highways of the State under the influence of intoxicating liquors. You also inquire if such person is apprehended for operating his car during the period of revocation and has his license revoked for an additional period of time, whether or not the Governor may reinstate his driver's license at the end of the first revocation period but before the end of the period of the additional twelve months' revocation. Section 2621(161) of the Consolidated Statutes provides: "The Department shall forthwith revoke the license of any operator or chauffeur upon receiving a record of such operator's or chauffeur's conviction for any of the following offenses when such conviction has become final: "2. Driving a motor vehicle while under the influence of in-toxicating liquor or a narcotic drug. "(b) The Department, upon receiving a record of the convic-tion of any person upon a charge of operating a motor vehicle while the license of such person is suspended or revoked, shall immediately extend the period of such first suspension or revoca-tion for an additional like period." Section 2621(162) of the Consolidated Statutes provides: "The Department shall not suspend a license for a period of more than one year and upon revoking a license shall not iTii any event grant application for a new license until the ex-piration of one year." It can thus be seen that it is mandatory upon the Department to revoke the license of a person who has been convicted for driving under the influence of intoxicating liquors, and it cannot grant application for a new license until the expiration of one year. 42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. It will also be seen that under Paragraph (b) of Section 2621(161) that upon a person's being convicted for operating a motor vehicle during the period of the revocation of his license, shall immediately have his license revoked and extend the period of such first sus-pension or revocation for an additional like period. The nearest approach to the Governor's authority to reinstate the license of a person who has been convicted of operating a motor vehicle under the influence of intoxicating liquors or has had his license revoked for operating the same during the period of the first revocation is under Article III, Section 6, of the Constitution which gives to the Governor certain pardoning powers. The Constitution gives the Governor power to pardon criminals and commute sentences imposed upon them which have been imposed incidental to the conviction of crime. The decisions uniformly hold that the revocation or suspension of a license under the terms of the Uniform Drivers License Act is not a punishment for crime. The State has power to grant operators licenses upon reasonable conditions, or to revoke or suspend such licenses upon a violation of these conditions. The law requiring or authorizing the Motor Vehicle Department to revoke a driver's license when the driver has been convicted of a violation of the provisions of the Act, does not impose a penalty, but on the contrary, it is entirely disconnected with any punishment or burden to be imposed upon a convicted person because of the crime he has committed. It is purely a police measure under authority of the police power of the State and for the protection of the public, and the fact that the violation of these conditions may also be a criminal offense is not material. See the case of Commonwealth v. Funk, 186 Atlantic Reporter 65; People V. Cohen, 217 N. Y. S. 726-728 and Hedrick v. Maryland, 235 U. S. 610-632. I am, therefore, of the opinion that the Governor of the State of North Carolina does not have the statutory power or the pardoning power granted to him by the Constitution to restore a driver's or chauffeur's license to a person who has been convicted for the violation of a provision of the Uniform Drivers License Act, and who has had his license revoked by the Motor Vehicle Department as directed under Section 2621(161) of the Consolidated Statutes. Extradition; Waiver; Expense of Returning Fugitive 14 April, 1943. The correspondence and bill covering the expense of returning one Taylor Harris to Guilford County from Centerville, Alabama, has been submitted by you to this office for consideration. You desire my opinion as to whether the State of North Carolina would be justified in paying the expense of returning Taylor Harris to Guilford County for trial. It appears from the correspondence that no application was made to you as Governor requesting the extradition of Harris. It follows that no demand was made by you on the Governor of Alabama for the return of this person. This identical question was raised by Hon- 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL . 43 orable H. L. Koontz, Solicitor of the Twelfth District, on February 28, 1940, and in answer to the request of Mr. Koontz for an opinion this office wrote as follows: "You state that the Police Department of the City of Greensboro has sent you an itemized statement of a bill for expenses incurred in returning to this State a fugitive from justice, a felon, who was returned by the Police Department of Greensboro from Florida, without going through the formality of an extradition proceeding. "This identical question has been the subject of consideration by this Office before. On the 5th of April 1937, the then Attorney General Seawell rendered an advisory opinion to Sheriff Clark of Bladen County, wherein he held that 'the State will not pay expenses even in such a case unless the requisition is demanded by the Governor of this State and an agent named to transport the prisoner. In cases other than felonies, the expenses must be paid by the county.' "And, again on the 10th of July 1935, in a similar situation, this office advised Mr. B. L. Fentress, County Attorney, of Greensboro, as follows: " 'It is the opinion of this office that Consolidated Statutes, Section 4556, applies only where the Governor of this State has actually made a requisition on the Governor of another state for a fugitive from justice. We are of the opinion, also, that 4556 (v) should be taken into conjunction with 4556, and unless actual requisition has been made by the Governor, that the costs of returning a prisoner to this . State, who has waived extradition, should be borne by the county.' "The same conclusion w^as reached in another similar case in an advisory opinion addressed to Mr. Charles Hughes, County Attorney at Newland, North Carolina, on the 4th of December, 1935." The conclusion reached in the letter to Mr. Koontz is still the opinion of this Office. Double Office Holding; Notary Public and Member of County Board of Elections 1 July, 1943. You state in your letter of June 30 that it appears from an ap-plication filed by Mr. Fred R. Seeley of Beaufort, North Carolina, as a Notary Public, that Mr. Seeley is now a member of the Board of Elections of Carteret County. You desire to know whether, in my opinion, the membership of Mr. Seeley on the County Board of Elections would interfere with his appointment as a Notary Public. Article XIV, Section 7, of the Constitution of North Carolina, provides : "No person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this State, or under any other state or government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a seat in either house of the General Assembly; Provided, that nothing herein contained ' shall extend to officers in the militia, justices of the peace, com-missioners of public charities, or commissioners for special purposes." 44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. This office has held on numerous occasions that a Notary Public and membership on the County Board of Elections are both offices within the meaning of this Constitutional provision. I would recommend that Mr. Seeley resign as a member of the County Board of Elections before qualifying as a Notary Public. However, our Supreme Court has held, in the case of Whitehead v. Pittman, 165 N. C. 89, that the acceptance of a second office by one holding a public office operates ipso facto to vacate the first In the case of Barnhill v. Thompson, 122 N. C. 493, one of the cases on which the opinion in the above case was based, it was held that the officer has the right to elect which office he will retain and that his election is deemed to have been made when he accepts and qualifies for the second office. The acceptance of the second office is, of itself, a resignation of the first. Appropriations; Board of Charities and Public Welfare; Surplus Commodity Division; 1943-1944 3 August, 1943. I received your letter of August 2, with enclosures, having reference to the appropriations made by Chapter 530 of the Session Laws of 1943, page 593, Item 12, for the year 1943-1944, of a total of $226,470.00 to the Board of Charities and Public Welfare, and par-ticularly with reference to the appropriation included therein of $54,830.00, under the heading of V-8 in the Budget Report, entitled "Surplus Commodity Division." I have very carefully considered the question presented in this correspondence, as to whether or not some part of this appropriation of $54,830.00 could be used by the Board of Charities and Public Welfare in cooperation with the State Department of Public Instruc-tion in carrying out the lunch room program made possible by the availability of an appropriation made by Congress of fifty million dollars, which includes approximately $1,250,000.00 estimated as North Carolina's pro rata share to be used to reimburse the lunch room program sponsors for local purchases of food from farmers and food merchants. I understand also, in addition to this program, that the Federal Government will make available for distribution to the school lunch rooms surplus commodities of the same nature and character as was in contemplation at the time the General Assembly of 1943 enacted the Appropriations Act. After consultation with Mr. R. G. Deyton, Assistant Director oi the Budget, I am of the opinion that the appropriation of $54,830.00 referred to, to the Board of Charities and Public Welfare could be legally employed to provide the funds necessary for the operation of the lunch room program, to be expended by the State Board of Charities and Public Welfare in cooperation with the State De-partment of Public Instruction and under a budget approved by the Budget Bureau. In my opinion, this expenditure will substantially carry out, in part, the program contemplated by the General As-sembly in making the above referred to appropriation. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 Extradition; Arrest 14 August, 1943. I have before me a letter to you from Mr. B. L. Lytton, of B. L. Lytton & Associates of Knoxville, Tennessee, under date of August 10, complaining on account of the failure of the Sheriff of Gaston County to arrest J. Caswell Taylor on a warrant charging a felony, issued in Knoxville, Tennessee, and sent by the sheriff of that county to the Sheriff of Gaston County. Under our extradition law, Michie's Code 4556(13), it is provided that a warrant can be issued for the arrest of a person in this State tried for the commission of a crime in another state, upon affidavit being made charging the commission of such crime and, when arrested, held to await extradition (Michie's Code 4556(15)). An arrest may also be made without a warrant for an offense punishable by death or imprisonment for a term exceeding one year, but complaint must be made under oath, setting forth the offense (Michie's Code 4556(14)). C. S. 4550 authorizes a warrant to be issued for the arrest of a person who is a fugitive who is charged with a capital crime and certain felonies. The Sheriff of Gaston County would not be authorized to arrest the defendant on a warrant issued by a court in Tennessee, as the issuing court has no authority to direct a sheriff of a county in this State to make the arrest. I, of course, am not informed as to why the Sheriff of Gaston County has not acknowledged the correspondence referred to in the letter from Mr. Lytton. Military Personnel; Jurisdiction of State Courts 14 August, 1943. I have before me a letter to you from Major General William Bryden, under date of August 2, 1943, in which he requests you to make a statement of policy with reference to the jurisdiction of the State courts over military personnel and the method of handling arrests made by military personnel for violations of State and military laws. I have considered very carefully General Bryden's letter, together with the statement of policy he has requested you to sign. I am attaching hereto a copy of a letter from this office, under date of July 22, 1942, written to Honorable W. Y. Bickett, Solicitor, on the subject of General Bryden's letter. You will observe from this copy that a conclusion was reached by me in accordance with the position taken by General Bryden as to the respective authority of the civil and military authorities. I believe, therefore, that you might properly make the statement of policy as to these matters requested by General Bryden, but I do think that in all cases the necessary formalities should be gone through with so that the military personnel arrested would not be discharged from arrest except upon a proper order of the judge of the court which has jurisdiction to try the case. If the offense committed is a felony and the case is pending in the Superior Court, it is my opinion that a formal application in writing should be made by the commanding officer of the person arrested, asking for the sur- 46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. render of the prisoner to be properly dealt with by the military authorities. Upon such request being made, it would be in order, if the judge concurred in the views expressed by this office, to make an order directing the surrender of the prisoner to the commanding of-ficer of the person arrested. In misdemeanor cases, it would seem proper that an order should be made by the court having jurisdiction, of a similar character in order that military personnel arrested would not be informally dis-charged from arrest without necessary and proper record being made. It is my understanding that the commanding officers in the various camps in the State have approved proceedings for applying the sug-gestions made as to the manner of securing the release of military personnel from our State authorities. I believe that any statement of policy which you should promulgate should carry with it the require-ment above suggested. Militia; Home Guard; Winston-Salem; Greensboro; High Point 7 December, 1943. In a conference held in your office recently with some of the municipal officials of the Cities of Winston-Salem, Greensboro and High Point, and officers of the Home Guard located in these Cities, the status of these organizations was considered in view of Sections 6894 and 6895(a) of the Consolidated Statutes, which read as follows: Section 6894. "If any person shall organize a military company, or drill or parade under arms as a military body except under the militia laws and regulations of the state, or shall exercise or attempt to exercise the power or authority of a military officer in this state, without holding a commission from the governor, he shall be guilty of a misdemeanor." Section 6895(a). "It shall be unlawful for any person not an officer or enlisted man in the United States army, navy, or marine corps, to wear the duly prescribed uniform of the United States army, navy, or marine corps, or any distinctive part of such uniform, or a uniform any part of which is similar to a distinc-tive part of the duly prescribed uniform of the United States army, navy, or marine corps. . . ." I am enclosing herewith a copy of a letter from Capt. D. D. Edmunds of the Winston-Salem unit to Mayor Garland of Gastonia, which I assume properly describes the organization of the several Home Guard units. In this conference it was urged by the municipal officials and officers of the Home Guard that their units did not constitute a military organization within the purview of the above quoted sections, but were in the nature of organizations of auxiliary policemen named by the mayor or governing body of the interested cities. I was requested to study the city charters as to any provisions authorizing the naming of auxiliary policemen. The city charter of the City of Greensboro, as amended by Chapter 230 of the Private Laws of 1927, contains the following provision: "... Provided, that for any emergency the city manager may appoint temporary police officers without examination. . . ." 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL , 47 The Winston-Salem city charter, as amended by Chapter 232 of the Private Laws of 1927, contains the following: "Sec. 23. . . . In times of emergency the mayor may appoint temporary additional policemen for such time as shall appear necessary, not exceeding one week, who shall take the same oath and be subject to the same control as regular policemen. ..." I find no charter provision authorizing the City of High Point to name special auxiliary policemen. It will be observed that each one of these charter provisions merely authorizes the appointing official to appoint temporary police, and in the case of Winston-Salem, this appointment is limited to one week. In the case of Wilson v. Mooresville, 222 N. C. 283, our Supreme Court said: "Though the town may make rules for their regulation, such policemen as may be appointed are vested with the same powers and duties as peace officers, and are circumscribed by, and are subject to the same limitations upon such powers and duties. . . . It has no authority to enlarge or to restrict their powers and duties as peace officers conferred upon them by the Legislature." The jurisdiction of the temporary police authorized under the quoted sections of the charters of the interested cities is limited to the cor-porate limits of the respective city or one mile radius beyond. Such police officers would not have authority to make arrests or otherwise serve as policemen beyond such territory, and making an arrest with-out a warrant outside of such territory would constitute an assault. If such police officer is injured while in the performance of his duties as police officer beyond his jurisdiction, he would not be entitled to the benefits of the Workmen's Compensation Act. Wilson v. Moores-ville, 222 N. C. 283. Leave of Absence; Solicitor; Entering Service Without Military Commission 28 December, 1943. I have your letter of December 27, in which you advise that one of the Solicitors of the State will shortly be inducted into Military Service under the Selective Service System, and the Solicitor entering the Service would like to have a leave of absence and have an acting solicitor appointed in his place. You advise that he is not being commissioned as an Officer, but will enter the Army as a Private. You submit the following questions : 1. Is it within my power to grant the requested leave of absence or is it necessary to consider that the induction of the solicitor into Military Service will terminate his tenure of the office of solicitor making it necessary for me to appoint a new solicitor instead of an acting solicitor for the period covered by leave of absence? 2. In the event of my appointment of either a new solicitor or an acting solicitor, is such an appointment for the unexpired term of office or is it required to be only until the next general election? As the Solicitor entering the Military Service will not be com-missioned as an Officer but will enter the Army as a Private, I am 48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol. of the opinion that, under authority of Chapter 121 of the Public Laws of 1941, you would have the authority to grant the leave of absence on the condition that this official will not receive any salary during the period of the leave of absence, and, under the statute, no leave of absence granted will operate to extend the term of office of the official beyond the period for which he was elected. This statute provides that, if you deem it necessary, you may appoint any citizen of the State, without regard to residence or district, as acting official or substitute for the period of the leave of absence, such appointee to have all the authority, duties, perquisites, and emolu-ments of his principal. As the Solicitor mentioned will not accept a commission, there would be, in my opinion, no dual office holding within the prohibition of Article 14, Section 7 of the State Constitution. The public policy of the State has been declared in the 1941 statute, having this identical problem in mind, and the law above referred to was passed for the specific purpose of authorizing you as Governor to grant the leave of absence for Military Service of "any elective or appointive State official." I therefore think that you could properly grant the leave of ab-sence upon the application of the Solicitor for the duration of the existing state of war, with the proviso that the leave of absence would not extend beyond the present term of office for which the Solicitor has been elected. This, I believe, answers both the questions you submitted. Leave of Absence; Comptroller, State Board of Education; Double Office Holding; Acceptance of a Commission as Captain in the United States Army 29 December, 1943. I have your letter of December 27, in which you advise that Honorable Nathan Yelton, Comptroller of the State Board of Educa-tion, has accepted a commission as Captain in the United States Army and has been assigned for special work with the Allied Military Governments, having entered upon his duties as such on December 27, 1943. You state that this presents the question as to whether or not Captain Yelton can be granted a leave of absence, and also, whether or not it will be possible for the State Board of Education, w^ith the approval of the Governor, to name an Acting Comptroller, or whether his acceptance of a commission terminates his tenure of office, making it necessary to appoint or elect his successor for the unexpired portion of the term of his appointment. I have today conferred with you about the subject of your letter and advised you that, in my opinion, no satisfactory answer could be secured to this question except through the medium of the opinion of the Chief Justice and Associate Justices of the Supreme Court of North Carolina. The identical question has not been presented under the circumstances of this case to our Court. I am enclosing herewith a copy of the memorandum on this subject from which you will observe that some of the Courts of other states have held that 27j biennial report of the attorney general , 49 the acceptance of a commission of the character accepted by Captain Yelton would prevent him from holding the office under the authority of the State, while in other jurisdictions, the Courts have reached a contrary conclusion. The nearest approach to this question in our State is found in the matter of J. G. Martin, 60 N. C. 153, in which, at the request of Governor Zebulon B. Vance, an opinion of the Justices was rendered, in which it was held that the acceptance of the office of Brigadier General under the Confederate States vacated the office of Adjutant General of North Carolina held by the person accepting the Con-federate States' office. This case, however, was decided on the basis of incompatibility of the two offices, although the constitutional provision then existing was substantially similar to Article IV, Section 7 of our Constitution. On account of the great importance and emergency of this question, I feel confident that the Chief Justice and Associate Justices of the Supreme Court, at your request, would be willing to render you their advisory opinion, and I recommend this course. Judges of Superior Court; Commissions to Judges; Authority to Act Within a District or a County 6 January, 1944. I have your letter of January 4, 1944, with the letter from Honorable Leo Carr. The case to which Judge Carr referred is Shepard v. Leonard, 223 N. C. 110. In that case, under an agreement of exchange with Honor-able Q. K. Nimocks, Jr., the Judge regularly holding the courts of the Seventh Judicial District, Honorable Hubert E. Olive was com-missioned "to hold the said court of the County of Wake: second week regular civil term, January 18, in the Seventh Judicial District." Under the above commission, the Court held that Judge Olive was without authority to sign an order in a civil action pending in Franklin County although Franklin County is within the same judicial district. At page 113 of Shepard v. Leonard, supra, Barnhill, J., observes: "While under the constitutional provision the power and authority of special judges is or may be that of regular judges of the Superior Court, these judicial powers are to be exercised by special judges only 'in the courts which they are so appointed to hold.' The authority vested in the General Assembly to provide for the appointment of special judges and to define their juris-diction is subject to this definite limitation and the General As-sembly is without power to grant jurisdiction to special judges in excess thereof. Greene v. Stadiem, 197 N. C. 472, 150 S. E. 18; Reid v. Reid, supra; Ipock v. Bank, 206 N. C. 791, 175 S. E. 127. "Speaking to the subject in Ipock v. Bank, supra, Brogden, J., says : 'Therefore, it is manifest that the power of special and emergency judges is defined and bounded by the words "in the courts which they are so appointed to hold".' "Civil actions pending on the civil issue docket of a county are always subject to motion in the cause. These motions may be made before the judge at term. In many instances they may be 50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol, made out of term. When made at term the judge presiding, whether regular or special, has jurisdiction. To this extent Sec. 5, Ch. 51, Public Laws 1941, has full constitutional sanction. "However, the Constitution, Art. IV, Sec. 11, does not confer or authorize the Legislature to confer any 'in chambers' or 'vaca-tion' jurisdiction upon special judges, assigned to hold a designated term of court. "It may be said that a regular judge holding the courts of the district has general jurisdiction of all 'in chambers' matters aris-ing in the district. Why then is not this jurisdiction conferred on a special judge by the statute within the limitations of the Con-stitution? "The general 'vacation' or 'in chambers' jurisdiction of a regular judges arises out of his general authority. Usually it may be exer-cised anywhere in the district and it is never dependent upon and does not arise out of the fact that he is at the time presiding over a designated term of court or in a particular county. As to him, it is limited, ordinarily, to the district to which he is assigned by statute. It may not be exercised even within the district of his residence exceot when specially authorized by statute. Ward v. Agrillo, 194 N. C. 321, 139 S. E. 451; Howard v. Coach Co., 211 N. C. 329, 190 S. E. 478. "Under the statute, Ch. 51, Public Laws 1941, enacted pursuant to Art. IV, Sec. 11, of the Constitution, a special judge, during the term of the court he has been assigned to hold, has full and com-plete jurisdiction over all actions and proceedings on the dockets of that court and may act in respect thereto with the same authority and to the same extent as a regular judge holding the court under statutory assignment. This includes the right to hear and decide any and all motions made in causes pending on the dockets and to grant any and all proper orders in respect thereto. Once having acquired jurisdiction at term he, by consent, may hear the matter out of term nunc pro tunc. Edmundson v. Edmundson, 222 N. C. 181. "On the other hand, he has no 'vacation' jurisdiction and no jurisdiction in any cause pending in any other county either within or without the same judicial district. Any attempt by the Legisla-ture to confer such jurisdiction goes beyond the limitations 'in the courts which they are so appointed to hold' and is without con-stitutional sanction." Sometime ago, in response to an inquiry by Honorable C. W. Tillett of Charlotte, concerning this same case, a form was prepared in this office for a commission to a special judge which would confer authority on the special judge so commissioned to act at any place within the district to the same extent as the regular judge assigned to hold the courts of said district. Of course, the special judge would have such authority only during the period for which his commission authorizes him to act. In case the fo |
OCLC Number-Original | 5792362 |